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UNIVERSITY 

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LIBRARY 


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UNIVERSITY 

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BRADBURY'S 

WORKMEN'S  COMPENSATION 

AND 

STATE  INSURANCE  LAW 

OF    THE 

UNITED  STATES 


A  complete  analysis  of  the  compensation  and  state  insurance  laws  of 
all  the  States  where  such  acts  have  been  passed,  as  well  as  the  statutes 
in  complete  form,  together  with  the  latest  British  Compensation  Act, 
with  numerous  notes,  comments  and  explanations. 

Including  also  an  introduction  showing  the  evolution  of  the  em- 
ployers' liability  principle,  into  the  workmen's  compensation  and  state 
insurance  doctrines  in  this  and  foreign  countries. 


BY 

HARRY  B.  BRADBURY 

(II 

OF  THE  NEW  YORK  BAR,  AUTHOR  OP  "bRADBUBY's  RULES  OF  PLEADING* 

AND  VARIOUS  WORKS  ON  PLEADING  AND  PRACTICE,  ALSO  CLAIM 

ATTORNEY  OF  THE  UNITED  STATES  CASUALTY    COMPANY 


THE  BANKS  LAW  PUBLISHING  CO. 

NEW    YORK 

1912 


COPTBIOHT,    1912,  BT 

THE  BANKS  LAW  PUBLISHING  COMPANY 


PRESS     OF    T.     MORCr    k    SON 
ORECNFJCLO,    MASS.,    U.    S.    A. 


WITH  GRATEFUL  ACKNOWLEDGMENT 
to 

MR.  EDSON  S.  LOTT, 

President  of  the  United  States  Casualty  Company 


1 


PREFACE 

The  year  1911  witnessed  the  beginning  of  an  in- 
dustrial revolution  in  America.  I  say  "beginning," 
because  the  compensation  laws  thus  far  passed  are,  to  a 
considerable  extent,  the  result  of  crude  efforts  to  grasp 
at  a  principle  which  has  not  been  understood  thor- 
oughly, in  all  instances,  by  the  lawmakers.  A  glance 
at  the  varied  methods  of  treating  the  same  subject, 
by  the  legislatures  of  different  States,  exhibited  in 
the  first  thirty-seven  chapters  of  this  work,  will  demon- 
strate one  of  the  worse  defects  (I  might  almost  say 
curses)  of  American  lawmaking.  Each  legislature 
doubtless  thinks  it  has  passed  the  best  statute.  Yet 
the  variety  is  almost  infinite.  Thousands  of  employers 
operate  in  a  number  of  States.  They  must  learn  the 
intricacies  of  the  laws  of  each  State  in  computing  the 
final  cost  of  their  operations  in  two  or  more  common- 
wealths. This  book  has  been  published  to  help  solve 
these  problems.  The  provisions  of  all  the  statutes 
passed  thus  far,  on  each  particular  subject,  are  com- 
pared in  the  first  thirty-seven  chapters.  The  texts 
of  the  laws  themselves,  with  their  paragraphs  in 
their  regular  order,  have  been  added,  as  doubtless 
some  readers  desire  to  see  them  in  that  form.  There 
has  also  been  added  the  British  Compensation  Act  of 


PREFACE 

The  year  1911  witnessed  the  beginning  of  an  in- 
dustrial revolution  in  America.  I  say  "beginning," 
because  the  compensation  laws  thus  far  passed  are,  to  a 
considerable  extent,  the  result  of  crude  efforts  to  grasp 
at  a  principle  which  has  not  been  understood  thor- 
oughly, in  all  instances,  by  the  lawmakers.  A  glance 
at  the  varied  methods  of  treating  the  same  subject, 
by  the  legislatures  of  different  States,  exhibited  in 
the  first  thirty-seven  chapters  of  this  work,  will  demon- 
strate one  of  the  worse  defects  (I  might  almost  say 
curses)  of  American  lawmaking.  Each  legislature 
doubtless  thinks  it  has  passed  the  best  statute.  Yet 
the  variety  is  almost  infinite.  Thousands  of  employers 
operate  in  a  number  of  States.  They  must  learn  the 
intricacies  of  the  laws  of  each  State  in  computing  the 
final  cost  of  their  operations  in  two  or  more  conmion- 
wealths.  This  book  has  been  published  to  help  solve 
these  problems.  The  provisions  of  all  the  statutes 
passed  thus  far,  on  each  particular  subject,  are  com- 
pared in  the  first  thirty-seven  chapters.  The  texts 
of  the  laws  themselves,  with  their  paragraphs  in 
their  regular  order,  have  been  added,  as  doubtless 
some  readers  desire  to  see  them  in  that  form.  There 
has  also  been  added  the  British  Compensation  Act  of 


VI  PREFACE 

1906.  As  the  constitutional  questions  are  still  im- 
portant there  have  been  appended  the  decisions  of 
the  courts  of  last  resort  of  New  York,  Massachusetts, 
Ohio,  Wisconsin  and  Washington,  relating  to  the  laws 
of  those  States  respectively,  together  with  the  decision 
of  the  Supreme  Court  of  the  United  States  declaring 
that  state  courts  may  enforce  the  Federal  Employers' 
Liability  Law  relating  to  those  engaged  in  interstate 
commerce,  and  defining  to  a  considerable  extent  the 
power  of  Congress  to  prescribe  rules  governing  the 
relation  of  master  and  servant. 

Prefixed  to  the  work  proper  is  an  introduction  show- 
ing the  evolution  of  the  employers'  liability  principle 
into  the  workmen's  compensation  and  the  state  in- 
surance doctrines,  with  a  discussion  of  the  application 
of  each.  Many  comments,  cross  references  and  eluci- 
dations have  been  inserted  where  the  statutes  are  con- 
fused, fragmentary  or  imperfect.  Many  English,  Irish, 
Scotch  and  Canadian  cases  have  been  added  to  indicate 
the  trend  of  judicial  interpretation  of  such  statutes. 

This  is  not  a  mere  digest  or  a  paraphrase  of  the  stat- 
utes of  the  various  States  on  the  subject  of  workmen's 
compensation.  It  is  a  reprint  of  the  acts  themselves. 
They  are  all  arranged  according  to  one  convenient  plan, 
so  that  a  particular  subject  can  be  consulted  without 
hunting  through  the  entire  body  of  the  law,  at  the  waste 
of  much  time  and  patience.  For  example,  an  investiga- 
tor desiring  to  learn  who  are  dependents  under  any  par- 
ticular statute  need  only  turn  to  Chapter  XVI,  and  to 
the  title  of  the  State  in  which  he  is  particularly  inter- 


PREFACE  VU 

ested.    The  States  are  arranged  alphabetically  in  each 
chapter. 

This  book  is  written  partly  in  the  hope  of  helping  to 
bring  about  greater  uniformity  in  the  compensation 
laws.  Originally  the  manuscript  was  compiled  for 
personal  use.  It  was  found  to  be  so  helpful  in  prac- 
tical, everyday  application  of  the  various  statutes,  that 
it  was  decided  to  publish  it. 

Harry  B.  Bradbury. 

141  Broadway,  New  York  City, 
April  10,  1912. 


INTRODUCTION 

It  has  been  said  that  the  workmen's  compensation 
principle  begins  where  the  employers'  liability  doc- 
trine ends.  At  any  rate  the  two  are  fundamentally 
different.  It  does  not  require  a  knowledge  of  the  em- 
ployers' liability  principle  to  understand  the  one  which 
underlies  workmen's  compensation. 

The  doctrines  of  assumption  of  risk  and  contributory 
negligence,  and  the  rule  relieving  the  master  from  re- 
sponsibility for  injury  to  one  servant  caused  by  the 
negligence  of  a  fellow  servant,  known  generally  as  the 
fellow-servant  doctrine,  were  created  by  the  court  and 
not  by  statute  law.  When  all  three  are  wiped  out  by 
statute  the  way  is  left  clear  to  define  the  liability  of 
a  master  for  injuries  caused  to  his  workmen  while  in 
his  employ. 

Much  of  the  uncertainty  and  confusion  formerly 
involved  in  the  administration  of  the  law  of  master 
and  servant  will  undoubtedly  be  eliminated  under 
compensation  statutes.  Payments  will  be  made  to  a 
much  larger  number  of  injured  workmen  under  the 
new  than  were  made  under  the  old  order.  Recovery 
of  excessive  "damages"  will  be  impossible,  except  in 
those  jurisdictions  where  an  election  of  remedies  is 
allowed  to  an  employ^,  or  where  a  workman  is  permitted 
to  try  to  recover  ''damages"  in  a  common-law  action, 
and,  if  unsuccessful,  to  claim  "compensation."  ^    At 

1  The  Departmental  Committee  of  England  in  its  report  for 
1904  (p.  93)  condemned  this  provision  of  the  Act  of  Parliament, 
saying:  "We  think  the  power  to  assess  compensation  after  mi- 

ix 


X  INTRODUCTION 

the  same  time  the  payment  of  the  smaller  sums  as 
"compensation"  will  be  much  more  easily  enforceable. 
The  evidence  adduced  from  other  countries,  where 
the  experiment  has  been  tried,  demonstrates  that  as  a 
rule,  in  the  aggregate,  a  considerably  larger  sum  will 
be  paid  under  the  compensation  laws  than  was  paid 
as  damages  under  the  old  employers'  liability  statutes. 
The  new  principle  has  been  adopted  with  a  sudden- 
ness, however,  that  has  been  disconcerting  to  those 
whose  activities  were,  to  a  very  considerable  extent, 
confined  to  an  administration  of  the  old  law.  A  some- 
what rare  concurrence  of  the  opinions  of  those  who 
usually  are  wide  apart  in  their  mental  attitudes,  has 
produced  a  flood  of  legislation,  much  of  which  has 
not  been  carefully  considered.  The  opinions  of  the 
reformers,  the  views  of  the  politicians,  and  the  passions 
and  prejudices  of  the  multitude  have  all  been  favorable 
to,  and  have  even  demanded,  compensation  laws.  The 
cry  has  been  "Let  each  business  stand  its  own  losses." 
The  author  is  in  thorough  sympathy  with  this  prin- 
ciple. His  occupation  as  claim  attorney  for  a  large 
casualty  company  has  compelled  him  to  become  fa- 
successful  proceedings  under  the  Employers*  Liability  Act  should 
be  repealed.  *  *  *  It  is  no  protection  whatever  to  impose  upon 
the  workman  who  fails,  the  obligation  to  pay,  or  the  liabiUty  to 
have  a  deduction  of  costs  from  his  compensation.  The  employer 
has  in  practice  to  bear  all  his  own  costs,  whether  he  succeeds  or 
not."  The  same  provision  is  found,  nevertheless,  in  the  act  of  1906. 
The  principle  has  not  been  adopted  generally  in  this  country.  Some 
States  grant  the  workman  an  election  whether  to  demand  "dam- 
ages" or  "compensation."  Usually,  after  he  has  elected  to  proceed 
on  one  theory  he  is  precluded  from  proceeding  on  the  other.  This 
principle,  however,  is  not  imiversal,  and  there  is  a  great  lack  of  uni- 
formity on  this  as  on  practically  every  other  feature  of  the  various 
statutes. 


INTRODUCTION  XI 

miliar  with  the  terms  of  the  law  in  each  State,  which 
has  passed  a  compensation  statute.  Each  act  is  con- 
structed on  a  different  plan.  The  wording  of  each  is 
different  from  any  of  the  others.  The  various  provi- 
sions relating  to  particular  topics  are  found  sometimes 
in  the  early  sections,  at  others  in  the  later  ones,  and 
again  in  the  middle  of  the  act.  Frequently  several 
topics  are  mingled  together  in  one  section.  Again,  one 
topic  is  often  treated  in  several  sections  of  a  single  act 
and  one  part  modifies  the  other  in  important  par- 
ticulars. There  is  a  great  diversity  as  to  those  who 
come  within  the  provisions  of  the  various  acts,  the 
amounts  paid  and  the  manner  of  administering  the 
statutes,  while  all  the  acts,  in  'principle,  accomplish 
the  same  result.  The  effect  of  all  this  is  that  a  par- 
ticular subject  can  be  found  only  by  the  expenditure  of 
a  good  deal  of  time  and  patience. 

To  eliminate  the  difficulty  of  finding  the  provision 
of  the  law  of  any  particular  State,  on  a  specified  topic, 
the  first  part  of  this  work  has  been  divided  into  thirty- 
seven  chapters,  each  topic  or  chapter,  relating  to  a 
subject  which  is  easily  recognized  and  understood  by 
anyone  who  has  the  slightest  familiarity  with  the  law 
of  master  and  servant,  so  far  as  it  relates  to  liability 
of  the  master  for  injuries  caused  to  his  servant  in  the 
course  of  his  employment. 

These  new  laws  are  based,  to  a  very  great  extent, 
on  the  plans  which  have  been  tried  in  other  countries 
to  eliminate  the  unsatisfactory  features  of  the  old 
employers'  liabifity  acts. 

Perhaps  a  short  r6sum6  of  the  experience  of  some 
of  the  other  countries  in  which  compensation  laws 
have  been  tried  will  help  to  give  a  clearer  understand- 
ing of  the  subject  than  would  be  possible  otherwise. 


XU  INTRODUCTION 

While  Germany  was  first  in  the  field  with  compen- 
sation laws,  it  will  lead  to  a  better  comprehension  of 
the  whole  subject  if,  before  discussing  the  German 
plan,  we  sketch  the  English  doctrine  of  employers' 
liability  and  show  briefly  how  it  has  developed  into 
the  modern  compensation  system.  This  is  so  because 
our  own  statutes  have  heretofore  been  modeled  largely 
on  the  Acts  of  Parliament,  and  our  judge-made  law 
has  followed  closely  the  decisions  of  the  British  courts. 

Undoubtedly,  the  most  important  chapter  in  the 
history  of  the  law  of  a  master's  liability  for  injuries 
to  his  servant,  is  to  be  found  in  the  case  of  Priestly  v. 
Fowler,  3  M.  &  W.  1,  decided  in  England,  in  1837. 
In  this  decision  the  court  established  the  doctrine  that 
an  employer  was  not  liable  for  the  injuries  to  one  work- 
man caused  by  the  negligence  of  a  fellow  servant.  This 
same  doctrine  was  followed  in  this  country  five  years 
later,  in  a  decision  written  by  Chief  Justice  Shaw,  of 
Massachusetts  (in  1842),  in  the  case  of  Farwell  v.  Bos- 
ton, etc.,  R.  Co.,  4  Met.  49.  Within  a  short  time  the 
same  principle  was  announced  by  the  courts  of  all 
the  other  States  as  well  as  by  the  Federal  tribunals. 
After  heated  discussion  in  England  the  rule  promul- 
gated in  the  earlier  case  was  confirmed  and  settled  by 
a  decision  in  the  House  of  Lords,  in  1858,  in  the  case  of 
Bartonshill  Coal  Co.  v.  Reid,  3  Macq.  H.  L.  Gas.  266. 
The  decisions  show  that  thereafter  the  doctrine  was 
applied  with  the  greatest  rigor  in  England.  Employes 
in  all  grades  of  employment  were  held  to  be  fellow 
servants  with  those  in  practically  every  other  grade. 
General  superintendents  and  general  managers  were 
declared  to  be  fellow  servants  of  men  in  the  grades 
generally  of  laborers.  Conway  v.  Belfast  &  Northern 
R.  R.  Co.,  11  Ir.  L.  R.  345;  Hall  v.  Johnson,  3  H.  &  C. 


INTRODUCTION  XUl 

589.  An  ordinary  seaman  was  held  to  be  a  fellow 
servant  of  the  captain.  Hedley  v.  Pinkney  &  Sons  S.  S. 
Co.,  1  Q.  B.  58;  61  L.  J.  Q.  B.  179. 

In  this  country  the  fellow-servant  doctrine  was  not 
applied  uniformly.  The  rigor  of  the  English  decisions 
was  greatly  modified  by  the  ^' alter  ego^'  ^  principle, 
which  was  first  apphed  by  the  courts.  It  was  subse- 
quently seized  upon  by  legislators  as  the  basis  upon 
which  to  construct  the  later  rule,  found  in  many  em- 
ployers' Uability  acts,  to  the  effect  that  any  person 
clothed  with  any  authority  to  direct  work  or  workmen, 
was  not  a  fellow  servant  with  one  who  was  subject  to 
the  direction  of  the  other.  Again,  the  courts  in  this 
country  held,  under  certain  circumstances,  that  work- 
men engaged  in  different  departments  of  the  same 
establishment  were  not  fellow  servants  with  each  other, 
so  far  as  the  laws  of  negligence  were  concerned. 

The  principles  established  by  the  courts  and  the 
statutory  rules  adopted  by  the  legislatures  of  upwards 
of  forty  sovereign  States,  together  with  the  doctrines 
of  the  Federal  courts  and  the  Acts  of  Congi'ess,  pro- 
duced a  conglomerate  mass  of  heterogeneous  hodge- 
podge of  rules,  doctrines  and  exceptions,  which  no  one 
pretended  to  understand.  This  condition  existed  as 
long  ago  as  1892  when  it  was  commented  upon  by  the 
Supreme  Court  of  the  United  States,  in  the  case  of 
Baltimore  &  Ohio  R.  R.  Co.  v.  Baugh,  149  U.  S.  368. 

The   statutory  modification  began  in   England  in 

*  If  the  master  should  employ  a  superintendent,  who,  in  the  ab- 
sence of  the  master,  was  clothed  with  essentially  the  same  power 
and  discretion  which  the  master  could  exercise  while  present,  he 
was  held  to  be  the  alter  ego  of  the  master  and  not  a  fellow  servant 
of  the  master's  other  employes.  The  master  therefore  was  liable 
for  the  negligent  acts  of  this  alter  ego. 


XIV  INTRODUCTION 

1880  (43  and  44  Victoria,  c.  42),  by  the  enactment  of 
a  law  known  as  the  Employers'  Liability  Act  of  that 
year.  The  avowed  purpose  of  the  statute  was  to  "bring 
back  the  law  to  what  it  was  supposed  to  be  in  England 
before  the  case  of  Priestly  v.  Fowler." 

While  the  British  Act  of  1880  made  the  employer 
liable  for  injuries  to  workmen  due  to  defective  ways, 
works,  machinery  and  plant  or  caused  by  improper 
by-laws  or  lack  of  instructions,  its  chief  effect  on  the 
then-existing  doctrines  of  the  law  of  master  and  servant, 
related  to  the  fellow-servant  rule.  It  declared  that  the 
master  should  be  liable  for  injuries  to  an  employ^  when 
caused  by  '^the  neglect  of  his  superintendents,"  the 
"neglect  of  persons  to  whom  he  delegated  his  powers  of 
giving  orders,"  and  in  "the  case  of  railway  companies 
for  the  negligent  management  of  trains,  points  and 
signals." 

If  we  were  quick  to  follow  the  decisions  of  the  Eng- 
lish courts,  in  the  first  instance,  in  establishing  the 
fellow-servant  doctrine,  we  were  equally  alert  in  adopt- 
ing employers'  liability  laws,  founded  on  the  Act  of 
Parliament  of  1880. 

But  again  the  views  of  upwards  of  forty  legislative 
bodies,  each  jealous  of  its  own  opinions  and  its  own 
prerogatives,  produced  an  equal  number  of  employers' 
liability  laws,  no  two  of  which  were  alike.  Congress 
also  took  a  hand.  The  National  Legislature,  being 
confined  in  its  activities  to  those  occupations  which 
related  to  interstate  commerce,  adopted  statutes  which 
largely  modified,  and  in  some  instances  nullified,  the 
state  laws.  This  was  true  even  though  the  employer 
and  the  employe,  who  were  parties  to  a  particular  suit, 
were  both  residents  of  the  same  State,  where  the  ac- 
cident happened  and  where  the  suit  was  brought,  and, 


INTRODUCTION  XV 

even  though,  under  the  recent  decision  by  the  United 
States  Supreme  Court,  the  suit  was  brought  in  the 
state  tribunal  of  the  commonwealth  where  both  par- 
ties resided.  Second  Employers'  Liability  Cases,  223 
U.  S.  1.1 

The  British  Employers'  Liability  Act  proved  to  be 
unsatisfactory  for  reasons  which  have  been  discussed 
frequently  and  exhaustively.  Efforts  were  made  on 
several  occasions  to  introduce  the  compensation  feature, 
but  without  success,  until  1897,  when  the  first  com- 
pensation act  was  passed  by  the  British  Parliament. 
This  act  was  amended  in  1900,  and  again  in  1906, 
after  thorough  discussion,  and  after  consideration  of 
the  report  of  a  committee  ^  appointed  to  investigate 
the  subject.  The  text  of  the  Act  of  1906  will  be  found 
in  this  work. 

The  British  Act  has  none  of  the  features  of  what  is 
known  in  this  country  as  "State  Insurance."  The 
liability  for  compensation  is  entirely  personal  to  the 
employer.  It  does  permit  the  formation  of  mutual 
associations  either  by  a  number  of  employers  or  by  a 
single  employer.  But  this  feature  of  the  statute  is 
almost  a  dead  letter.  Such  associations  were  allowed 
while  the  employers'  liability  laws  were  in  force  and  a 
considerable  number  of  them  were  formed  thereunder. 
They  began  to  decline  as  soon  as  the  compensation 
law  was  adopted  and  at  the  present  time  very  few  of 
them  are  in  existence.  The  reason  for  this  condition 
of  affairs  appears  to  be  the  discontinuance  of  the  em- 
ployers to  contribute  to  the  funds  which  had  thereto- 
fore been  supported  by  contributions  from  both  em- 
ployers and  employes.    The  governmental  committee, 

» These  decisions  will  be  found  in  Chapter  XXXIX  of  this  work. 
2  Report  of  Departmental  Committee  of  1904. 


XVI  INTRODUCTION 

which  investigated  this  matter,  reported,  in  effect, 
that  under  the  Compensation  Act  the  burdens  on  the 
employers  are  so  great  that  they  ''can  hardly  be  ex- 
pected to  contribute  to  these  funds  as  well  as  to  bear 
the  burden  thrown  upon  them  by  the  Act."  ^ 

The  British  Act  of  1906  covers  all  employers,  in- 
dividual and  corporate,  in  every  employment.  In 
addition  to  compensation  for  accidental  bodily  inju- 
ries it  is  also  allowed  for  disability  flowing  from  six 
specified  occupational  diseases  and  such  other  diseases 
of  that  nature  as  are  specified  by  the  Secretary  of  State. 
No  workman  who  earns  more  than  £250  (approximately 
$1,250)  per  year  is  entitled  to  compensation,  unless 
he  is  engaged  in  manual  labor,  in  which  event  his 
earning  capacity  is  immaterial.  The  employer  cannot 
relieve  himself  from  the  obligations  of  the  Compensa- 
tion Act  by  contract,  except  where  some  substitute 
scheme  is  agreed  upon.  If  the  injury  is  caused  by  the 
workman's  own  serious  and  willful  misconduct  com- 
pensation is  not  allowed,  unless  death  or  serious  and 
permanent  disability  results.^  The  workman  has  the 
absolute  right  of  election,  after  the  accident  has  hap- 
pened, to  sue  at  common  law  for  ''damages"  or  demand 
"compensation."  If  his  action  for  damages  fails  he 
may  still  request  the  court  to  assess  compensation  in 
his  favor.  The  court  may,  under  such  circumstances, 
require  the  workman  to  pay  all  or  a  portion  of  the 
costs  of  the  unsuccessful  action  at  law  for  damages. 
This  provision  was  severely  condemned  by  the  Com- 

1  Report  of  Departmental  Committee  (1904),  p.  24. 

*  This  provision  of  the  British  act  is  remarkable  for  its  sym- 
pathetic humanitarianism,  if  not  for  its  equity.  No  matter  how 
willful  the  misconduct  of  a  workman  may  be  if  death  or  serious  and 
permanent  disability  ensues  compensation  must  be  paid. 


INTRODUCTION  XVll 

mittee  ^  which  made  an  investigation  in  1904,  but  was 
nevertheless  retained  in  the  revision  of  1906. 

The  employe  must  be  disabled  at  least  one  week  from 
earning  full  wages  at  his  employment  before  he  is  en- 
titled to  compensation.  Notice  of  the  accident  must 
be  given  as  soon  as  practicable  after  its  occurrence  and 
before  the  injured  person  voluntarily  leaves  the  service 
of  the  employer.  The  workman  who  claims  compen- 
sation must  submit  to  a  physical  examination  by  a  duly 
qualified  physician,  whose  services  shall  be  paid  for 
by  the  employer.  The  employer  and  the  employ^  may 
agree  upon  the  compensation  to  be  paid  and  in  case 
of  dispute  arbitration  may  be  had.  They  can  either 
agree  on  the  arbitrators  or  apply  to  the  county  judge 
who  shall  sit  as  an  arbitrator.  During  his  incapacity 
the  workman  is  entitled  to  receive  weekly  payments 
not  exceeding  50%  of  his  previous  weekly  earnings  and 
in  no  event  more  than  £1  (S5)  per  week,  the  specific 
amount  being  determined  by  the  degree  of  incapacity. 

In  case  of  death  the  amount  paid  to  the  dependents 
is  not  less  than  £150  ($750)  nor  more  than  £300  (|1,500). 
If  the  workman  leaves  no  dependents  the  employer  is 
obUgated  to  pay  not  to  exceed  £10  ($50)  for  medical 
and  funeral  expenses. 

The  compensation  when  paid  is  not  subject  to  attach- 
ment in  the  hands  of  the  workman.    In  the  event  of 

'  See  Report  of  Departmental  Committee  of  1904,  p.  19.  The 
committee  declared  that  "this  has  been  found  to  offer  a  strong 
temptation  to  the  less  scrupulous  class  of  solicitors  to  bring  specu- 
lative actions  on  behalf  of  their  clients  under  the  Employers'  Lia- 
bility Act,  or  in  some  cases  at  common  law  with  a  view  to  driving 
the  employer  to  settle  on  advantageous  terms.  *  *  *  We  think  that 
this  provision  has  worked  largely  to  the  disadvantage  of  both  em- 
ployer and  workman  and  is  responsible  for  a  large  quantity  of 
illegitimate  litigation." 


XVlll  INTRODUCTION 

the  insolvency  of  the  employer  a  workman  is  a  pre- 
ferred creditor  to  the  extent  of  £100  ($500),  and  in 
case  the  employer  is  insured  the  claim  vests  in  the 
workman  against  the  insurance  company  to  the  same 
extent  that  it  vested  in  the  employer.  The  full  text 
of  the  British  Act  of  1906  will  be  found  in  Chap- 
ter XXXVIII. 

In  Germany  the  first  compensation  law  was  enacted 
on  July  6,  1884.  This  was  re-enacted  and  the  provi- 
sions thereof  extended  on  May  28,  1885,  and  again  on 
May  5,  1886,  to  cover  agricultural  and  horticultural 
pursuits  and  forestry.  It  was  further  extended  on 
July  11,  1887,  and  July  13,  1887,  and  finally,  in  the 
year  1900,  the  various  laws  were  to  a  certain  extent 
unified. 

Large  and  small  industries  are  organized  into  em- 
ployers' associations,  grouped  according  to  callings. 
These  associations  are  self-governing  bodies,  and  every 
employer  is  compelled  by  law  to  join  the  one  represent- 
ing his  craft  or  trade.  Upon  these  organizations  is 
placed  the  responsibility  of  carrying  on  and  adminis- 
tering the  accident  compensation  system.  The  govern- 
ment has  a  supervising  power  over  them,  but  the  officers 
are  all  chosen  by  the  members  of  the  associations  them- 
selves, and  these  officers  act  without  pay. 

For  the  first  thirteen  weeks  the  pension  of  injured 
workmen  is  paid  out  of  the  sickness  fund,  which  is 
supported  by  the  employes  and  employers  jointly,  the 
employes  contributing  two  thirds  and  the  employers 
one  third. 

If  the  incapacity  lasts  more  than  thirteen  weeks  the 
insurance  associations  then  become  responsible.  They 
furnish  free  medical  attendance,  including  medicines, 
supports,   crutches,   etc.     They  pay  pensions  up  to 


INTRODUCTION  XIX 

two-thirds  of  the  annual  wage  rate  for  total  disabiUty, 
and  in  proportion  for  partial  disability.  In  cases  of 
complete  disability,  requiring  nurses  and  attendance, 
pensions  up  to  100%  of  the  annual  wage  may  be  al- 
lowed. 

Dependents  receive  free  treatment  in  hospitals  or 
sanitariums  and  pensions  of  a  maximum  of  60%  of 
the  wages  of  the  workmen. 

It  has  sometimes  been  said  that  the  German  plan 
was  a  state  insurance  scheme.  Nothing  could  be  further 
from  the  truth.  ^  The  Government  maintains  a  some- 
what strict  supervision  over  the  insurance  associa- 
tions, but  it  neither  collects  nor  pays  the  funds  which 
eventually  go  to  the  workmen  as  compensation  for 
injuries.  The  funds  are  collected  by  the  insurance 
associations  from  among  their  members.  They  ad- 
minister the  fund  through  officers  chosen  by  them- 
selves, most  of  whom  act  without  pay.  The  Government 
supervises  the  fund,  (except  that  it  does  not  require 
sufficient  reserves),  in  much  the  same  way  that  the 
various  insurance  departments  of  the  States  of  the 
Union,  supervise  the  insurance  companies  doing  busi- 
ness therein.  Upon  the  failure  of  the  employ^  to  secure 
such  an  award  as  he  deems  himself  entitled  to  receive 
there  is  a  system  of  appeals  by  which  the  controversies 
are  disposed  of,  finally  by  the  Insurance  Department. 

'  "Germany  is  frequently  referred  to  as  the  country  which  best 
exemplifies  Stat€  insurance.  The  fact  is  that  in  Germany,  as  has 
been  stated,  accident  insurance  is  conducted  entirely  by  mutual 
associations  of  employers  supervised  by  the  State,  which  furnishes 
little  more  than  the  compulsion  and  supervision.  Even  in  Austria, 
although  the  State  through  persons  appointed  by  it,  takes  a  limited 
part  in  the  management  of  these  mutual  associations  of  employers, 
it  has  not  accepted  financial  responsibility."  Workingmen^s  In- 
surance in  Europe — Frankd  and  Dawson,  p.  33. 


XX  INTRODUCTION 

Both  the  Government  and  the  insurance  associations 
have  given  a  good  deal  of  study  to  accident  prevention. 
Elaborate  and  accurate  statistics  have  been  compiled. 
Accident  prevention  has  become  a  science  and  a  pro- 
fession. Disobedience  to  rules  relating  to  safety  in- 
volves the  infliction  of  penalties  which  are  severe  in 
some  instances. 

The  general  opinion  of  German  employers  and 
government  officials  is  that  the  system  works  well. 
Nevertheless  there  is  serious  complaint  of  malinger- 
ing and  exaggerated  claims.  The  measures  taken  for 
accident  prevention  have  not  proved  as  successful  as 
it  was  hoped  they  would.  Probably  the  Germans 
would  refuse  to  make  any  radical  change  in  the  sys- 
tem, although  admitting  some  abuses. 

It  is  doubtless  true  that  the  foregoing  statement 
will  not  be  accepted  without  dispute.  The  opinion 
expressed  is  founded,  to  a  considerable  extent,  on 
the  letters  from  representative  men  printed  in  an  ap- 
pendix to  Accident  Prevention  and  Relief,  by  Schwedt- 
man  and  Emery.  The  chief  authority  for  the  opinion 
that  the  German  system  is  unsatisfactory  is  to  be 
found  in  the  article  by  Dr.  Ferdinand  Friedensburg, 
who  for  many  years  was  a  member  of  the  Senate  of  the 
Imperial  Insurance  Office.  Dr.  Friedensburg' s  article 
is  rather  pessimistic  in  tone.  Some  students  of  the 
subject  have  shown  a  disinclination  to  accept  his 
opinions  at  their  face  value.  This  is  especially  true  in 
view  of  the  more  or  less  earnest  praise  for  the  system 
contained  in  the  letters  printed  in  the  appendix  to 
Accident  Prevention  and  Relief  to  which  reference  has 
already  been  made.  Among  other  things  Dr.  Friedens- 
burg says: 

"In  the  very  first  year  of  accident  insurance  (1886), 


INTRODUCTION  '  XXI 

15,863  pensions  amounting  to  1,547,593  marks  (about 
$400,000)  were  granted;  this  including  indemnifica- 
tion for  the  most  insignificant  injuries  resulting  in.  a 
loss  of  3  to  5  per  cent  of  earning  capacity. 

*'But  recently  there  has  become  audible  an  increas- 
ing volume  of  protest  from  large  organizations,  worthy 
of  respect  in  every  way,  that  authoritatively  voice 
the  complaints  of  the  tradesman,  both  small  and  great, 
expressly  denying  from  the  very  start  all  hostility  to 
workingmen's  insurance  in  the  abstract;  they  show 
how  gravely  German  industry  is  handicapped  in  com- 
petition with  foreign  markets  by  the  cost  of  insurance, 
which  can  now  be  characterized  by  nothing  short  of 
monstrous  amounting,  as  it  does,  to  almost  exactly 
2,000,000  marks  ($500,000)  daily. 

''If  disregarding  the  burdens  of  taxation,  we  con- 
sider simply  the  burdening  of  our  industrial  activity 
with  social  assessments,  we  reach  the  result  that  even 
to-day  the  burden  of  contributions  to  insurance  caused 
by  this  social  policy  alone  amounts  to  nearly  800,000,000 
marks  ($160,000,000)  annually.— We  must  therefore 
soon  reckon  with  a  burden  of  about  1,250,000,000 
marks  ($250,000,000)  each  year  laid  upon  our  indus- 
trial activity  simply  and  solely  for  purposes  of  social 
insurance. 

''Unfortunately,  the  employers  of  moderate  or  of 
scanty  means  are  the  very  ones  from  whom  the  con- 
tributions to  the  various  classes  of  insurance  exact 
a  percentage  of  running  expenses  that  becomes  more 
and  more  oppressive.  Unlike  larger  firms,  they  are 
unable  to  recoup  themselves  by  their  power  to  set 
prices,  which  are  determined  independently  of  them; 
and,  although  relatively  few  complaints  have  thus  far 
been  heard  from  these  circles,  this  is  very  possibly 


XHl  •  INTRODUCTION 

because  the  more  personal  controversies  between  em- 
ployer and  employe,  which  in  the  labor  world  are 
the  characteristic  of  time,  give  rise  to  even  more  bit- 
terness and  anger  than  these  contributions  to  the 
Trades  Associations.  Only  recently  the  Prussian 
Minister  of  Finance  has  shown,  by  actual  statistics, 
how  the  workingman  submits  to  a  taxation  by  his 
'colleagues'  that  would  undoubtedly  drive  him  to 
revolution  if  it  were  the  State  that  levied  it.  An  ad- 
ditional factor  is  terror  of  the  Social  Democrats;  and, 
in  pursuance  of  a  train  of  thought  that  was  vaguely 
felt  by  the  original  legislator,  and  which  we  shall  con- 
sider again  at  the  close  of  our  study,  it  was  beUeved 
that  the  threatening  perils  of  Social  Democracy  might 
be  averted  by  contributions  toward  the  insurance 
fund — that  the  workingmen  might  be  bought  off,  so 
to  speak,  from  revolution.  The  extreme  unwilling- 
ness to  incur  disfavor  with  this  party  is  clearly  shown 
by  the  attitude  of  a  witness  in  the  Moabit  Riot  trial, 
who,  when  asked  if  he  belonged  to  it,  first  answered 
with  a  decided  denial,  then  declared  that  he  did,  and 
ended  by  saying  that  he  'belonged  to  no  party.' 

"Should  there  come  times  when  our  industrial  ac- 
tivity or  even  merely  essential  parts  of  it  should  no 
longer  be  able  to  meet  the  social  obligations  legally 
imposed  upon  it,  then  there  will  be  no  alternative 
except  for  the  State  as  the  State  to  assume  those  bur- 
dens if  it  is  to  avoid  a  catastrophe  whose  scope  none 
can  foresee  even  so  far  as  social  conditions  will  be 
concerned. 

"The  question  of  the  degree  of  earning  capacity 
still  possessed  by  an  injured  person  is  by  far  the  most 
frequent  problem  for  decision.  Yet  even  here — and 
again    with    entire   justice — certain    fixed    principles 


INTRODUCTION  Xxiii 

have  been  developed,  as  that  the  loss  of  an  eye  regu- 
larly entitles  a  workingman  to  from  30  to  SSVs  per 
cent  of  the  pension  for  complete  loss  of  earning  capacity. 
This  very  principle  is  one  of  those  most  constantly 
opposed.  The  Trades  Associations  have  given  the 
Office  long  extracts  from  the  pay  rolls  which  prove 
beyond  all  doubt  that  very  many  workingmen-if  not 
the  majority  of  them — receive,  after  losing  an  eye, 
precisely  the  same  wages  as  those  who  have  suffered 
no  injury,  and  as  they  themselves  did  previous  to 
their  accident.  A  still  more  curious  result  arises  from 
certain  combinations  of  injuries  to  the  hands  or  fingers. 
It  has  been  shown  that  such  injuries,  when  received 
in  brawls  or  in  other  ways  unconnected  with  the  work- 
ingman's  occupation,  do  not  prevent  him  from  gaining 
his  old  wages  mthin  a  short  time,  for  the  adaptability 
and  habituation  of  the  human  body  are  nothing  short 
of  marvelous.  Nevertheless,  an  industrial  accident 
with  exactly  the  same  results  was  indemnified  with 
the  pension  of  30  per  cent,  or  even  more.  There  are 
workingmen,  especially  among  those  engaged  in  the 
wood  industry,  who  draw  pensions  of  from  30  to  40  per 
cent  for  two,  three,  and  even  four  accidents  of  this 
type,  which  are  very  frequent  in  their  occupation; 
and  yet  earn  full  wages. 

''The  question  whether  an  accident  is  to  be  regarded 
as  incurred  in  the  pursuit  of  an  occupation,  whether 
it  is,  in  other  words,  to  be  indemnified  by  an  accident 
pension,  would  seein  at  first  blush  to  be  the  problem 
that  might  most  readily  be  solved  by  legal  considera- 
tions, so  that  here  benevolence  would  appear  to  have 
its  smallest  range  of  action.  Experience,  however, 
teaches  a  very  different  lesson.  It  is  a  recognized 
principle  that  accident  insurance  is  awarded  only  for 


xxiv  Introduction 

injury  by  an  actual  accident,  not  for  a  sickness  which 
the  insured  has  contracted  in  consequences  of  his  trade 
employment.  Accordingly,  every  possible  effort  has 
been  made  to  construe  the  law  so  as  to  make  the 
Trades  Association  responsible  in  these  cases  as  well. 
Industrial  accident  is  assumed,  not  only  in  cases  where 
the  injury  results  from  a  single,  sudden  occurrence, 
but  also  where  the  injurious  process  did  and  must 
continue  for  some  time  in  order  to  produce  an  effect 
prejudicial  to  earning  capacity,  such  as  colds  as  a  re- 
sult of  working  in  water,  heat  stroke  from  remaining 
in  excessive  heat,  paralysis  from  working  in  rooms 
where  electric  machines  are  in  operation,  and  the  like. 
A  precisely  similar  problem  emerges  in  cases  where 
a  sickness  latent  in  the  person  insured  breaks  out  in 
consequence  of  some  process  connected  with  his  oc- 
cupation, as  happens,  for  instance,  when  persons  with 
a  tendency  to  consumption  are  obliged  to  lift  and 
carry. 

"That  accidents  incurred  while  on  the  way  to  work 
cannot  be  deemed  industrial  accidents  scarely  requires 
proof,  and  yet  all  kinds  of  indirect  ways  have  been 
devised  to  help  those  who  have  thus  been  injured  to 
secure  pensions,  so  that  many  grants  have  been  made 
in  cases  where  the  employe  chanced  to  be  carrying 
a  tool  which  contributed  to  the  accident,  or  where 
his  employer  directed  him  to  take  a  certain  road,  or 
to  attend  to  this  or  that  on  the  way,  and  the  like. 

*'In  1886  the  accidents  reported  were  100,159,  and 
damages  were  awarded  in  10,540  cases;  in  1908  these 
figures  were  662,321  and  142,965  respectively. 

"The  law  sought  also  to  protect  the  workingman 
against  accidents  due  to  carelessness  and  inattention, 
and  it  accordingly  authorized  the  employer  to  frame 


INTRODUCTION  XXV 

prohibitions  designed  to  obviate  any  possible  dangers 
arising  from  this  cause.  Acting  on  this  principle,  juris- 
diction long  maintained  that  a  workingman  who  dis- 
obeyed such  a  prohibition  which  had  been  made  prop- 
erly effective  placed  himself  'outside  his  industry,'  and 
accordingly  lost  all  claim  to  a  pension  in  case  of  ac- 
cident.   This  ruling  has  recently  been  abandoned. 

''It  is  almost  absurd  to  see  how  considerations 
adopted  in  special  cases  to  grant  a  pension  under 
circumstances  that  would  normally  exclude  it,  pene- 
trate into  the  remotest  corners  and  become  the  com- 
mon property  of  all  pension  hunters.  The  Imperial 
Insurance  Office  once  decided  that  an  accident  re- 
ceived while  chopping  wood  should  be  indemnified  be- 
cause it  was  shown  that  the  wood  in  question  was 
being  chopped  to  boil  fodder  for  cattle.  Since  that 
time — at  least  if  the  allegations  of  claimants  for  pen- 
sions may  be  beUeved — cattle  have  never  and  nowhere 
received  fodder  that  was  not  boiled,  nor  has  wood 
ever  been  chopped  except  to  boil  such  fodder. 

"Even  in  everyday  life  many  sickly  persons  are 
inclined  to  overrate  and  exaggerate  their  ills  and  aches, 
and  the  popular  modern  complaint  of  nervousness 
has  essentially  fostered  this  weakness  in  general. 
Now  insurance  furnishes  a  shockingly  fertile  soil  for 
this  sort  of  nonsense,  and  here  grows  the  evil  and 
envenomed  weed  of  pension  hysteria,  one  of  the  most 
melancholy  consequences  of  our  workingmen's  insur- 
ance. Whoever,  in  the  course  of  his  occupation,  re- 
ceives an  injury,  which  may  be  of  the  most  trivial 
nature  and  which,  as  has  already  been  shown  in  the 
case  of  injuries  to  the  hand  would  not  disturb  him 
in  the  least  under  other  circumstances,  guards  it 
like  a  veritable  treasure  and  tends  it  like  a  milch  cow. 


XXVI  INTRODUCTION 

From  unconscious  exaggeration  to  direct  ifivention, 
from  neglect  of  the  treatment  prescribed  to  the  arti- 
ficial keeping  open  of  wounds,  daily,  and  in  the  case 
of  the  majority  of  those  injured,  there  is  found  a  grada- 
tion of  the  most  diverse  efforts  to  render  their  condi- 
tion suitable  for  the  payment  of  a  pension.  Every 
sickness  and  injury  a  man  either  has  or  ever  has  had 
is  brought  into  connection  with  the  accident,  the 
allegation  being  either  that  the  sickness  or  injury  was 
caused  or  aggravated  by  the  accident,  or  that  it  is  to 
be  regarded  as  accelerating  its  own  normal  conse- 
quences. Frequently  an  accident  is  deliberately  in- 
vited, and  is  then  made  to  serve  as  a  plea  for  a  pension 
claim,  in  harmony  with  the  jurisdiction  already  de- 
scribed in  cases  of  combinations  of  sickness  and  acci- 
dent. Whether  the  injury  is  great  or  small  makes  no 
difference.  Improvement  is  the  last  thing  ever  to  be 
acknowledged.  Any  thought  of  decreasing  a  pension 
is  normally  answered  with  the  assertion  that  the  trouble 
is  growing  worse,  if  not  with  a  demand  that  the  pen- 
sion be  increased,  and  in  this  way  an  accident  forms 
the  starting-point  of  a  series  of  suits  which  frequently 
do  not  end  even  at  the  death  of  the  man  injured, 
since  a  pensioner  having  other  persons  dependent  upon 
him  can  scarely  die  except  as  a  result  of  an  accident 
received  in  the  course  of  his  occupation,  however  long 
ago  this  accident  may  have  occurred,  and  however 
remote  its  cause,  medically  speaking,  from  his  last 
illness. 

''Here  again  is  manifested  the  lamentable  phe- 
nomenon of  the  transformation  of  reason  into  folly 
and  of  the  change  of  benefits  intended  into  injuries. 
There  is  an  alarmingly  large  number  of  the  injured 
who  are  absolutely  unwilling  to  be  cured.    The  regula- 


INTRODUCTION  XXVll 

tion  that  the  insurance  carrier  must  sustain  the  costs 
of  cure  gives  them  a  welcome  opportunity  to  enjoy 
themselves  in  every  way  on  another's  money,  since 
they  can  almost  invariably  find  a  compliant  physician 
who  will  certify  that  the  expenditures  desired  are  neces- 
sary and  proper,  regardless  of  their  relation  to  the 
patient's  former  modes  of  life  and  his  social  surround- 
ings. 

"The  cost  of  the  insurance  was  to  be  compensated 
for  because  it  would  aid  in  lessening  the  burdens  of 
the  poor.  Curiously  enough,  very  little  is  now  heard 
regarding  this  promise.  In  reaUty,  expenditures  for 
the  poor  have  increased  almost  everywhere,  both  as 
regards  the  number  of  those  who  are  supported  and  as 
regards  the  degree  of  support  which  is  given  in  indi- 
vidual cases. 

''In  an  age  which,  in  Prince  Billow's  words,  cannot 
abase  itself  low  enough  before  'King  Mob,'  this  judg- 
ment has  scant  prospect  of  success.  This  was  self- 
evident  to  me  from  the  very  instant  that  I  began  my 
task,  yet  I  deem  it  a  deed  well  done  to  have  called 
attention  once  again  to  the  all-pervading  cancer  that 
is  destroying  the  vitals  of  our  State." 

Italy  has  a  workman's  compensation  law  and  also  a 
compulsory  insurance  statute.  The  insurance  may  be 
taken  with  any  insurance  company  authorized  to  carry 
on  business  in  Italy,  in  private  accident  insurance  funds 
or  in  the  National  Accident  Insurance  Fund.  The 
latter  is  not  a  State  Department.  It  is  conducted  by 
a  number  of  savings  banks  with  the  co-operation  and 
assistance  of  certain  government  officials.  A  large 
portion  of  the  expense  of  administration  is  paid  by  the 
Government  from  general  taxation. 

France  has  a  compensation  but  not  compulsory  in- 


XXVm  INTRODUCTION 

surance  act.  The  law  is  very  complicated,  but  con- 
tains many  safeguards  against  insolvency  of  employers 
the  principal  of  which  is  a  National  Guarantee  Fund 
from  which  compensation  is  paid  to  the  employes  who 
are  entitled  to  compensation  under  the  act  but  are 
not  otherwise  protected. 

In  Norway  a  compensation  law  on  a  state  insurance 
plan  went  into  effect  on  July  1,  1895.  It  covers  manu- 
facturing only,  however;  agriculture,  fisheries  and 
shipping  not  being  included.  Insurance  must  be  taken 
in  all  cases  by  the  employer  in  the  State  Department. 
Administration  expenses  are  paid  by  the  State  out  of 
general  taxes,  the  department  being  managed  by 
governmental  appointees.  In  non-fatal  cases  the  em- 
ploy6  after  four  weeks  is  entitled  to  medical  treatment 
either  at  home  or  in  a  hospital.  The  expenses  of  the 
first  four  weeks  of  illness  due  to  an  accident  are  borne 
by  the  sickness  insurance  societies  if  the  workman  is 
insured.  Otherwise  the  employer  must  bear  this  ex- 
pense. The  workman  may  receive  as  high  as  60% 
of  his  wages  while  disabled  with  a  maximum  limit, 
however,  of  60  crowns  ($16.20)  per  month. 

Sweden  has  a  compensation  law  but  the  liabiUty  is 
left  entirely  to  the  employer,  who  may  carry  his  own 
risk  or  insure  in  a  stock  or  mutual  company  or  in  the 
State  Department.  Only  by  insuring  in  the  State  De- 
partment, however,  can  he  be  relieved  from  all  further 
liability. 

Denmark  has  a  compensation  law,  but  without  state 
insurance  features. 

Belgium  has  a  compensation  law,  but  not  compulsory 
insurance.  Employers  escape  liability,  however,  by 
insuring  in  a  Belgian  company  approved  by  the  State. 
The  State  Department  of  Insurance  also  has  power  to 


INTRODUCTION  XXIX 

insure  employers  against  liability,  but  it  has  not  exer- 
cised this  power.  A  "Guarantee  Fund"  to  insure 
those  entitled  to  compensation  against  the  bankruptcy 
of  their  employers  has  been  established  by  the  State. 
It  is  supported  by  contributions  levied  upon  employers. 

Holland  has  a  compensation  law  with  compulsorj' 
insurance  features.  But  the  employer  may  insure  in 
any  of  the  "recognized"  insurance  companies.  Em- 
ployers who  can  demonstrate  their  ability  to  carry  their 
own  risks  and  provide  payment  for  their  injured  work- 
men are  not  compelled  to  insure.  There  is  also  a  state 
insurance  fund.  It  is  optional  with  the  employer 
whether  to  contribute  to  the  state  fund  or  secure  in- 
surance from  a  stock  or  mutual  company. 

According  to  Frankel  and  Dawson  the  State  Depart- 
ment is  facing  a  considerable  deficit.^  This  is  due,  to 
a  considerable  extent,  according  to  the  same  authority, 
to  the  fact  that  the  State  Department  must  accept 
any  risk  while  the  private  companies  may  discriminate. 

In  the  United  States  up  to  this  time  four  general 
forms  of  compensation  laws  have  been  adopted. 

In  the  State  of  Washington  a  statute  has  been  passed 
and  is  now  in  operation  which  is  generally  designated 
as  a  "State  Insurance  Law."  The  name  is  somewhat 
of  a  misnomer.  While  the  State,  through  a  commission, 
collects  and  disburses  the  insurance  fund,  it  does  not 
in  any  sense  guarantee  payments,  and  when,  in  any 
particular  industry,  insufficient  funds  are  collectible 
to  pay  the  awards,  they  simply  remain  unpaid.  The 
law  had  been  in  effect  only  a  short  time  when  this 
very  condition  arose.  There  were  only  three  powder 
manufacturers  in  the  State.    An  explosion  in  the  mill 

^  Workingmen's  Insurance  in  Europe,  p.  59. 


XXX  INTRODUCTION 

of  a  small  concern  at  Chehalis  in  the  State  of  Washing- 
ton, resulted  in  the  loss  of  seven  or  eight  Uves.  The 
Commission  made  awards  to  the  dependents  of  those 
killed,  but  there  was  very  little  money  available  to  pay 
these  awards,  because  very  small  sums  had  been  col- 
lected from  the  powder  manufacturers,  and  the  awards 
to  these  dependents  are  still  unpaid.  The  theory  of 
the  Washington  law  is  that  only  the  sums  collected 
from  each  industry  shall  be  used  to  pay  for  the  in- 
dustrial accidents  in  that  industry.  The  weakness  of 
the  system  is  apparent  when  applied  to  a  single  State 
with  the  limited  insurance  average  in  respect  to  cer- 
tain industries  containing  only  a  few  plants  in  a  par- 
ticular commonwealth.  It  amounts  practically  to  those 
plants  carrying  their  own  insurance.  The  only  way 
in  which  an  employer  in  the  State  of  Washington  can 
take  advantage  of  the  compensation  principle  is  to 
adopt  the  state  insurance  scheme.  Moreover,  the 
Washington  law  is  mandatory  and  requires  every 
employer  in  certain  industries  to  contribute  to  the 
state  insurance  fund  and  imposes  somewhat  severe 
penalties  for  his  refusal. 

In  Ohio  the  statute  is  generally  termed  an  "optional 
state  insurance  law."  It  is  optional  only  in  the  fact 
that  an  employer  may  adopt  the  state  insurance  plan 
or  not,  as  he  chooses,  but  the  only  way  he  can  embrace 
the  compensation  principle  is  to  adopt  state  insurance. 
As  to  those  who  come  under  the  state  insurance  scheme 
the  plan  of  operation  is  much  the  same  as  that  contained 
in  the  Washington  law.  In  both  the  Ohio  and  Washing- 
ton statutes  the  workmen  can  appeal  from  the  refusal 
to  make  an  award  or  because  of  the  inadequacy  thereof. 
But  no  appeal  lies  on  behalf  of  the  employers  who  have 
to  pay  the  compensation.    The  decisions  of  the  Com- 


INTRODUCTION  XXXI 

mission  are  absolutely  final  so  far  as  the  employers  are 
concerned. 

In  Massacnusetts  the  employer  must  insure  in  "any 
liability  insurance  company  authorized  to  do  business" 
within  the  State  or  become  a  subscriber  to  the  Massa- 
chusetts Employers'  Insurance  Association.  The  com- 
pensation is  paid  upon  awards  made  by  the  Industrial 
Accident  Board.  The  Massachusetts  Employers'  As- 
sociation is  a  mutual  company  first  organized  by 
directors  appointed  by  the  Governor  and  subsequently 
operated  by  directors  elected  from  the  employers  who 
are  members.  This  company  receives  no  financial 
support  from  the  State,  except  a  small  initial  appro- 
priation to  pay  preliminary  expenses  and  a  loan  of 
$100,000,  which  must  be  repaid.  It  must  collect  from 
the  employers  who  are  members  enough  to  pay  the 
awards  to  injured  workmen  and  their  dependents  made 
by  the  State  Board  and  also  operating  expenses.  There 
is  no  provision  for  raising  funds  except  by  assessments 
on  the  members.  There  is  a  provision  for  classification 
of  industries.  Upon  the  failure  of  the  employer  to  in- 
sure his  common-law  defenses  are  eliminated  in  both 
Ohio  and  Massachusetts. 

The  other  States  have  passed  optional  compensa- 
tion laws  the  Uability  being  purely  personal  with  the 
employer.  Optional  laws  were  passed  because  of  the 
decision  of  the  Court  of  Appeals  in  New  York,  in  the 
case  of  Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  to 
the  effect  that  a  mandatory  law  was  unconstitutional. 
Some  of  these  statutes  provide  that  the  election  to 
adopt  compensation  may  be  exercised  by  the  employer 
remaining  quiescent,  and  taking  no  action  whatever. 
The  New  Jersey  law  is  of  this  type.  Others  require 
the  employer  to  take  some  affirmative  action  to  in- 


XXXU  INTRODUCTION 

dicate  that  he  has  elected  to  come  under  the  compen- 
sation statute.  Such  is  the  Act  of  Wisconsin.  It  has 
been  felt  that  there  could  be  no  doubt  as  to  the  con- 
stitutionaUty  of  those  acts  which  required  both  the 
employer  and  the  employ^  to  show  their  election  by 
some  affirmative  act  while  there  was  some  doubt  as  to 
the  binding  effect  of  the  implied  election  from  silence. 
It  has  seemed  to  the  author  that  this  distinction  was 
of  very  little  importance.  We  are  all  familar  with  the 
laws  which  permit  the  waiving  of  such  a  sacred  right 
as  trial  by  jury,  by  silence.  This  principle  is  surely 
as  important  as  the  one  relating  to  compensation 
statutes. 

The  various  laws  have  been  described  in  detail  else- 
where in  this  work. 


CHAPTER  HEADINGS 

CHAPTER  PAGE 

I.  Abolition  of  Defenses;  Election  of  Remedies     .        1 
II.  To  Whom  Act  Applies 39 

III.  Liability  of  Principal  Contractor  for  Injuries 

to  Workmen  of  Subcontractor     .     .        .        .     176 

IV.  Contracts  Exempting  Employers  from  Operation 

OF  Act 188 

V.  Time  Within  Which  no  Compensation  is  Allowed 

Except  Medical  Aid 193 

VI.  Medical  Attention 197 

VII.  Funeral  Expenses 202 

VIII.  Compensation  to  Dependents  in  Case  of  Death  206 
IX.  Compensation   for  Total   or  Permanent   Disa- 
bility       234 

X.  Compensation   for  Partial  or  Temporary  Dis- 
ability              274 

XI.  Commutation  of  Award  or  Agreed  Compensation 
by  Present  Payment  of  Lump  Sum,  by  Annuity 

OR  Otherwise 294 

XII.  Definition  of  Permanent  Total  Disability         .  303 

XIII.  Definition  of  Temporary  Total  Disability          .  306 

XIV.  Definition  of  Permanent  Partial  Disability     .  309 
XV.  Definition  of  Temporary  Partial  Disabiuty     .  312 

XVI.  Who  are  Dependents 314 

XVII.  Definitions  not  Otherwise  Classified         .        .    334 
XVIII.  Garnishment  or  Seizure  of  Awards  for  Debts, 

AND  Assignments  of  Awards      ....    342 

XIX.  Attorney's  Fees 346 

XX.  Subrogation  by  and  Against  Employers,  Insur- 
ance Companies  and  Others      ....     350 
XXI.  Notice  of  Claim  under  Act;  When  Required; 

How  Served;  Form  of  Notice   ....    358 
XXII.  Limitations  on  Actions  and  Proceedings  under 

Act 376 

XXIII.  Examinations  by  Physicians  ....     383 

XXIV.  By  Whom  Law  Administered  and  how  Awards 

Determined;  Forms  of  Petitions,  Answers  and 
Awards 396 

xxxiii 


XXXIV  CHAPTER   HEADINGS 

CHAPTER  PAGE 

XXV.  Reviewing  Awards  by  Appeal.       ....     451 
XXVI.  Modifying  Awards  Otherwise  than  by  Appeal     .     468 
XXVII.  Manner    of    Creating    State    Insurance    Fund 
OR  OTHER  Alternative  Plan  in  the  Common- 
wealths   WHERE    they    are    REQUIRED    OR    PER- 
MITTED     493 

XXVIII.  Penai/ties  for  Failure  to  Comply  With  Law       .    531 

XXIX.  Reports  op  Injuries  and  Awards  .        .        .     535 

XXX.  When  Laws  Become  Effective      ....    547 

XXXI.  Fees  and  Costs 551 

XXXII.  Preferences  of  Claims  and  Awards  for  Com- 
pensation       556 

XXXIII.  Enforcement  by  Workmen  of  Claims  for  Com- 

pensation Directly  Against  Liability  Insur- 
ance Companies 560 

XXXIV.  Insurance  Contracts  Presumed  to  be  Subject  to 

Act 567 

XXXV.  Compromising  Claims  and  Awards        ...        .571 
XXXVI.  Expenses    of   Administering    Law,    other   than 

Payments  of  Awards  for  Compensation     .        .  679 

XXXVII.  Repealing  Acts 584 

XXXVIII.  Constitutional  Decisions 592 

XXXIX.  Texts  op  Compensation  Acts        ....  852 


TABLE  OF  CASES  REPORTED 
AND  CITED 

B.  W.  C.  C.=  Butterworth's  Workmen's  Compensation  Cases. — 
W.  C.  C.  =  Workmen's  Compensation  Cases. 

Page 

A  Andrew  v.  Failsworth  Indus- 
Page  trial  Soc.  (1904),  90  L.  T. 

Aberdeen  Steam  Trawling  &  611;  6  W.  C.  C.  11 49,  102 

Pushing  Co.  V.  Gill  (1907),  Anglo-Australian  Steam  Nav- 

45  Scotch  L.  R.  247;  1  B.  igation    Co.    v.    Richards 

W.  C.  C.  274 115  (1911),  4  B.  W.  C.  C.  247.  .  479 

Ableman  v.  Booth,  21  How.  Anley's  Executors  v.   Neale 

506 850  (1907),  9  W.  C.  C.  34 277 

Abraham  Coal  Co.  v.  South-  Anslow    v.    Cannock    Chase 

ern  (1903),  5  W.  C.  C.  125  247  Colliery    Co.    (1909),    100 

Adair  v.  United  States,  208  L.  T.  786;  2  B.  W.  C.  C.  365  244 

U.  S.  161..  796,  803,  806,  Appleby  v.  The  Horseley  Co. 

809,  813,  830,  838  &  Lovatt  (1899),  80  L.  T. 

Adams  v.  Shaddock  (1905),  853;  1  W.  C.  C.  103 243 

2  K.  B.  859;  8  W.  C.  C.  58  334  Armitage  v.  Lancashire  and 
Addyaton   P.   &    S.    Co.    v.  Yorkshire  Ry.  Co.  (1902), 

United  States,   175  U.  S.  86  L.  T.  883;  4  W.  C.  C.  5  101 

211 825  Arnott    v.    Fife    Coal    Co., 

Admital  Fishing  Co.  v.  Rob-  (1911),    48   Scotch   L.    R. 

inson  (1910),  102  L.  T.  203;  828;  4  B.  W.  C.  C.  361 ... .   236 

3  B.  W.  C.  C.  247 115  Assaria  State  Bank  v.  Dolley, 

Alabama  G.  S.   Ry.   Co.   v.  219  U.  S.  121. . .  .643,  645,  646 

Coggings,  88  Fed.  Rep.  455  819  Astley  v.   R.   Evans  &  Co. 

AUgeyer    v.    Louisiana,    165  (1911),  104  L.  T.  373;  4  B. 

U.  S.  578;  17  Sup.  Ct.  427;  W.  C.  C.  209;  aflf'd  4  B.  W. 

41  L.  Ed.  832 735,  830  C.  C.  319 104,  105 

Anderson  v.  Balfour  (1910),  Atchison,  T.  &  S.  F.  R.  R. 

44  Irish  L.  T.  168;  3  B.  W.  Co.  v.  Matthews,  174  U.  S. 

C.  C.  588 49  96;  19  Sup.  Ct.  609;  43  L. 

Anderson   v.   Fife   Coal   Co.  ed.  909 720 

(1909),  47  Scotch  L.  R.  5;  Atlantic,    etc.,    Tel.    Co.    v. 

3B.  W.  C.  C.  539 76  Philadelphia,  190  U.  S.  160  797 

XXXV 


XXXVl       TABLE   OF   CASES   REPORTED   AND   CITED 


Page 
Atlantic   Coast   Line   R.   R. 
Co.  V.  Riverside  Mills,  219 
U.  S.  186.  .  .  .803,  805,  842,  843 
Atrader  v.  Baldwin,  9  How. 
261 799 

B 

Babcock  &  Wilcox  v.  Young 

(1911),    48   Scotch   L.    R. 

298;4B.  W.  C.C.  367...  251 
Bacon  v.  U.  S.  Mutual  Acci- 
dent Assn.,  123  N.  Y.  304.     69 
Bacon  v.  Walker,  204  U.  S. 

311;27Sup.  Ct.  289;51L. 

Ed.  499 725 

Bagnall  v.  Levinstein  (1906), 

96L.T.  184;9W.C.C.  100    119 
Bailey  v.  Interstate  Gas  Co., 

8  App.  Div.  127;  40  Supp. 

513;afF'dl58N.  Y.  723;53 

N.  E.  1123 69 

Bailey  v.  Kenworthy  (1906), 

1  B.  W.  C.  C.  371 245 

Bailey  v.  Kenworthy  (1907), 

98  L.  T.  327;  1  B.  W.  C.  C. 

351 252 

Bailey  v.  Plant  (1900),  3  W. 

C.  C.  209 408 

Baird,  William  Co.  v.  Burley 

(1908),  45  Scotch  L.R.  416; 

1  B.  W.  C.  C.  7 51 

Baker  v.  Jewell  (1910),  3  B. 

W.  C.  C.  503 407 

Ball  V.  William  Hunt  &  Sons 

(1911),  104  L.  T.  327;  4  B. 

W.  C.  C.  225 238 

Baltimore  &  Ohio  R.  R.  Co. 

V.  Baugh,   149  U.  S.  368 

810,  838,  842 
Baltimore  &  Ohio  R.  R.  Co. 

V.     Interstate     Commerce 

Commission,  221  U.  S.  612, 

618 838,843 


Page 

Baltimore  &  O.  R.  R.  v.  Mary- 
land, 21  Wall.  456 826 

Bank  v.  SoUey,  219  U.  S.  121  770 

Barbier  v.  Connolly,  113  U.  S. 
27 613,826 

Bargewell  v.  Daniel  (1907), 
123  L.  T.  J.  487;  9  W.  C.  C. 
142 122 

Barker  v.  Holmes  (1904),  6 
W.  C.  C.  52 362 

Barnabas  v.  Bersham  Col- 
liery Co.  (1910),  102  L.  T. 
R.621;3B.W.C.C.216..  400 

Barnabas  v.  Bersham  Col- 
liery Co.  (1910),  4  B.  W. 
C.  C.  119 58 

Barnes  v.  The  Nunnery  Col- 
liery Co.  (1910),  4  B.  W. 
C.  C.  43 93 

Bartlett  v.  Tutton  &  Sons 
(1901),  85  L.  T.  531;  4  W. 
C.  C.  133 250 

Bates  V.  Davies'  Executors 
(1909),2B.  W.  C.  C.  459..     97 

Bates-Smith  v.  General 
Motor  Cab  Co.  (1911), 
A.  C.  188;  4  B.  W.  C.  C. 
249;  aff'g  (1910),  3  B.  W. 
C.  C.  500 116 

Beadle  v.  Milton  &  Others 
(1903),  114  L.  T.  550;  5  W. 
C.  C.  55 51 

Beadle  &  Others  v.  Owners  of 
S.  S.  "Nicholas"  (1909), 
101  L.  T.  586;  3  B.  W.  C. 
C.  102 454 

Beale  v.  Fox  (1909),  2  B.  W. 
C.  C.  467 130 

Beardsley  v.  N.  Y.,  L.  E.,  & 
W.  R.  R.  Co.,  162  N.  Y. 
230 633 

Beavin's  Petition,  33N.  H.  89  802 

Beech  v.  Bradford  Corpora- 


TABLE   OF   CASES   REPORTED   AND   CITED     XXXVU 


Page 
tion  (1911),  4  B.  W.  C.  C. 
236 572 

Belt  Ry.  Co.  v.  United  States, 
168  Fed.  Rep.  542 836 

Bender  v.  Owners  of  Steam- 
ship "Zent"  (1909),  100 
L.  T.  639;  2  B.  W.  C.  C.  22 .   105 

Bennett  v.  Scutt,  18  Barb. 
347,  349 643 

Benson  v.  Lancashire  &  York- 
shire Rail.  Co.  (1904),  1 
K.B.242;6W.C.C.20;89 
L.  T.  715 72,73,77 

Bemier  v.  Bemier,  147  U.  S. 
242 818 

Bertholf  v.  O'Reilly,  74  N.  Y. 
509;  30  Am.  Rep.  323.  .616, 

720,  834 

Bielingbery  v.  Montana 
Union  Ry.  Co.,  8  Mont. 
271 622 

Birmingham  Cabinet  Manu- 
facturing Co.  V.  Dudley 
(1910),  102  L.  T.  619;  3  B. 
W.  C.  C.  169 473 

Birmingham  Ry.  Co.  v.  Par- 
sons, 100  Ala.  662 622 

Bist  V.  London  &  South  West- 
ern Ry.  Co.  (1907),  96 
L.  T.  750;9  W.  C.  C.  19..   124 

Bletz  V.  Columbia  Nat.  Bank, 
87  Pa.  St.  87 800 

Blovelt  V.  Sawyer  (1904),  1 
K.  B.  271;6  W.  C.  C.  16..     89 

Blyth  V.  Sewell  (1909),  2  B. 
W.  C.  C.  476 123 

Blythe  v.  Hinckley,  173  U.  S. 
508 799 

Boag  V.  Lockwood  Collieries 
(1909),  47  Scotch  L.R.  47; 
3B.  W.  C.  C.  549 476 

Board  man  v.  Scott  &  Whit- 
worth  (1901),  3  W.  C.  C. 


Page 

33;  aff'd  (1901),  85  L.  T. 

502;  W.  C.  C.  1 57 

Bonnett  v.  Vallier,  136  Wis. 

193;  116  N.  W.  885;  17  L. 

R.  A.  (N.  S.)  486;  128  Am. 

St.  Rep.  1061 694 

Boon  V.  Quance,  No.  1  (1909), 

102  L.  T.  443;  3  B.  W.  C. 

C.  106 112,113 

Borgnis  v.  Falk,  133  N.  W. 

Rep.  209  (Wis.).  .656,  776,  783 
Boswell  V.  Gilbert  (1909),  2 

B.  W.  C.  C.  251 178 

Bottoms  V.  St.  Louis  &  S.  F. 

Co.,  179  Fed.  Rep.  318.  .. .  833 
BowUn  V.  Commonwealth,  2 

Bush  (Ky.),  5;  S.  C,  92 

Am.  Dec.  468 802 

Bowhill  Coal  Co.  v.  Malcolm 

(1910),  47  Scotch  L.  R.  449; 

3  B.  W.  C.  C.  562 482 

Bowhill  Coal  Co.  v.  Neish  & 

Others   (1908),   46   Scotch 

L.  R.  250;  2  B.  W.  C.  C. 

253 321 

Bowman  v.  Chicago,  etc.,  Ry. 

Co.,  125U.  S.  465 810 

Boyd  V.  Doharty  (1908),  46 

ScotchL.  R.  71;2B.  W.  C. 

C.  257 404 

Bradley  v.  Salt  Union  (1906), 

122  L.  T.  J.  302;  9  W.  C.  C. 

31 127, 128 

Bramley    v.    Evans   &    Sons 

(1909),  3  B.  W.  C.  C.  34. . .  363 
Brandy  v.  Owners  of  S.   S. 

"Raphael"  (1910),  4  B.  W. 

C.  C.  6;  aff'd  (1911),  4  B. 

W.  C.  C.  307 246 

Branford   v.    North   Eastern 

Railway  Co.  (1910),  4  B. 

W.  C.  C.  84 478 

Brice     V.     Edward      Lloyd 


XXXVlll      TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

(1909),2K.B.804;2B.W. 

C.  C.  26 89 

Briggs  V.  Mitchell  (1911),  48 

Scotch  L.  R.  606;  4  B.  W. 

C.  C.  400 320 

Brintons,  Limited,  v.  Turvey 

(1905),  A.  C.  230;  7  W.  C. 

C.  1 64 

British    &    South    American 

Steam   Navigation   Co.   v. 

Neil  (1910),  3  B.  W.  C.  C. 

413 189 

Broderick  v.  London  County 

Council  (1908),  1  B.  W.  C. 

C.  219 65,66 

Brooker  v.  Warren  (1907),  23 

T.  L.  R.  201;9W.  C.  C.  26  129 
Brown  v.  Houston,  114  U.  S. 

622 810 

Brown  v.  Kidman  (1911),  4 

B.  W.  C.  C.  199 61 

Brown   v.   Maryland,   4   W. 

C.  C.  378 824 

Brown  v.  Scott  (1899),  1  W. 

C.  C.  11 98 

Brown  v.  The  South  Eastern 
&  Chatham  Railway  Co.'s 
Managing  Committee 
(1910),  3B.W.  C.  C.428..  248 

Buckley  v.  Brown,  Fed.  Cas. 
No.  2,092 719 

Buckley  v.  London  &  India 
Docks  (1909),  127  L.  T.  J. 
521;  2  B.  W.  C.  C.  327.246-247 

Burgess  &  Co.  v.  Jewell 
(1911),4B.  W.  C.  C.  145..  481 

Burkman  v.  Jamieson,  25 
Wash.  606;  66  Pac.  48.  .  .  .   720 

Burns  v.  Manchester  &  Sal- 
ford  Wesley  an  Mission 
(1908),  IB.  W.  C.  C.  305..   120 

Burrell  v.  Avis  (1898),  1  W. 
C.C.  129 128 


Page 
Burrell  v.  Holloway  Brothers 

(1911),     4   B.    W.    C.    C. 

239 362 

Burton  v.  Chapel  Coal  Com- 
pany (1909),  46  Scotch  L. 

R.  375;2B.  W.C.C.  120..  6 
Busby  V.  Richardson  (1901), 

3  W.  C.  C.  54 399 

Butler  V.  Boston  S.  S.  Co., 

130U.  S.  548 826 

Butt  V.  Gellyceidrim  CoUiery 

Co.  (1909),  3  B.  W.  C.  C.  44  362 
Butt  V.  Green,  29  Ohio  St. 

670 779 

Byers  v.    Meridian   Printing 

Co.,  84  Ohio  St.  408 778 

Byles   V.    Pool    and   another 

(19CI9),2B.  W.C.C.  484..  211 
Byrne,    William,    Matter  of, 

Deceased  (1910),  44  Irish 

L.  T.  98;  3  B.  W.  C.  C.  591  397 

c 

Cain  V.  Leyland  &  Co.  (1907), 

98  L.  T.  327;  1  B.  W.  C.  C. 

351 250,252 

Calder    v.    Bull,    3    Dallas 

(U.  S.),  388 801 

Caldwell  v.  N.  J.  Steamboat 

Co.,  47  N.  Y.  282 802 

California  v.  Pacific  Railroad, 

127  U.S.  1 814 

Calkins  v.  Barger,  44  Barb, 

424 643 

Cambrook  v.  George  (1903), 

5  W.  C.  C.  26 97 

Camfield    v.    United    States, 

167  U.  S.  518;  17  Sup.  Ct. 

864; 42 L.Ed. 260. 648,  729,  771 
Cammell,    Laird    &    Co.    v. 

Piatt  (1908),  2  B.  W.  C.  C. 

368 276 

Canavan  v.  Owners  of  the 


TABLE   OF   CASES   REPORTED   AND    CITED       XXXIX 


Page 
Steam  ship     "  Universal ' ' 
(1910),  3B.W.C.C.  355..     84 

Cardiff  Corporation  v.  Hall 
(1911),  104  L.  T.  467;  4  B. 
W.  C.  C.  159 476 

Carolan  v.  Harrington  &  Sons 
(1911),2K.  B.733;4B.  W. 
C.  C.  253 385 

Carpenter  v.  Snelling,  97 
Mass.  452 802 

Carroll  v.  Gray  &  Sons  (1910), 
47  Scotch  L.  R.  646;  3  B. 
W.  C.  C.  572 474 

Carswell  v.  Sharpe  &  Others 
(1910),  47  Scotch  L.  R. 
335;3B.  W.  C.  C.  552....   115 

Case  V.  Colonial  Wharves 
(1905),  8  W.  C.  C.  114....  250 

Caton  V.  Summerlee  &  Mos- 
send  Iron  Co.  (1902),  39 
Scotch  L.  R.  762 80 

Cawdor  &  Garnant  Collieries 
V.  Jones  (1909),  3  B.W.C. 
C.  59 470 

Challis  V.  London  &  South 
Western  Ry.  Co.  (1905),  7 
W.  C.  C.  23 102 

Chandler  v.  Smith  &  Son 
(1899),  1  W.  C.  C.  19 277 

Chapman  V.Atlantic  &  St.  Law- 
rence R.  R.  Co.,  37  Me.  92. .  720 

Charing  Cross,  Euston  & 
Hampstead  Ry.  Co.  v. 
Boots  (1909),  101  L.  T.  53; 
2  B.  W.  C.  C.  385 471 

Charles  v.  Walker  (1909),  25 
T.  L.  R.  609;  2  B.  W.  C.  C.  5  403 

Charlotte,  Columbia  &  Au- 
gusta R.  R.  Co.  V.  Gibbes, 
142  U.  S.  386;  12  Sup.  Ct. 
255;  35  L.Ed.  1051 730 

Charlotte  Nat.  Bank  v.  Mor- 
gan, 132  U.  S.  141 799 


Page 

Cheek  v.  Harmsworth  Bros. 
(1901),  4  W.  C.  C.  3 69 

Chesapeake  &  O.  R.  R.  Co.  v. 
Am.  Ex.  Bank,  92  Virginia, 
154 798 

Chicago  V.Stearns,  105  111.  554  819 

Chicago,  etc.,  Ry.  Co.  v.  Ross, 
112U.  S.  377 804 

Chicago,  etc.,  R.  R.  v.  Solan, 
169  U.S.  133 826 

Chicago,  Burlington  &  Quin- 
cy  Railroad  Co.  v.  Mc- 
Guire,  219  U.  S.  549 843 

Chicago,  etc.,  R.  Co.  v.  Whit- 
ton,  13  Wall.  288 800 

Chicago  June.  Ry.  Co.  v. 
King,  169  Fed.  Rep.  372. .  836 

Chicago,  K.  &  W.  R.  R.  Co. 
V.  Pontius,  157  U.  S.  209 

613,  810,  820,  823,  829,  833 

Chicago,  Rock  Island  &  Pa- 
cific Railway  Co.  v.  Zer- 
necke,  183  U.  S.  582.  .637, 

649,  722,  834 

Chiles  V.  Chesapeake  &  Ohio 
Ry.  Co.,  218  U.  S.  71 805 

Chisholm  v.  Walker  &  Co. 
(1908),  46  Scotch  L.  R.  24; 
2B.  W.  C.  C.  261 118 

Chitty  V.  Nelson  (1908),  2  B. 
W.  C.  C.  496 103 

Christian  v.  Macon  Ry.  & 
Light  Co.,  120  Ga.  314. .. .  820 

Claflin  V.  Houseman,  93 
U.  S.  130,  136,  137. 797, 

799,  800,  822,  849 

Clark  V.  Foot,  8  Johns.  421 . .   643 

Clark  V.  Gas  Light  &  Coke 
Co.  (1905),  7  W.  C.  C.  119  281 

Clark  V.  Nash,  198  U.  S.  361; 
25  Sup.  Ct.  676;  49  L.  Ed. 
1085 725 

Clat worthy  v.  R.  &  H.  Green 


xl 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

(1902),  86  L.  T.  702;  4  W. 

C.  C.  152 324 

Clayton   &    Shuttleworth   v. 

Dobbs(1908),2B.W.C.C. 

488 276 

Cleverley   &   Others   v.    Gas 

Light  &  Coke  Co.  (1907),  1 

B.  W.  C.  C.  82 211 

Chfford  V.  Joy  (1909),  43  Irish 

L.  T.  193;2B.W.  C.C.  32    96 
CHnton  Bridge,  The,  10  Wall. 

454 814 

Clover,    Clayton    &    Co.    v. 

Hughes  (1910),  A.  C.  242; 

3  B.  W.  C.  C.  275;  aff'g,  2 

K.  B.  798;  2  B.  W.  C.  C.  15    59 
Clyatt  V.  United  States,  197 

U.  S.  207 640 

Coal  Co.  V.  Illinois,  185  U.  S. 

203 783 

Coe  V.  Errol,  116  U.  S.  517.  .  825 
Coe  V.  Fife  Coal  Co.  (1909), 

46  Scotch  L.  R.  325;  2  B. 

W.  C.  C.  8 60 

Colasurdo  v.  Central  R.  R.  of 

N.  J.,  180  Fed.  Rep.  832.  .   832 
Cole  V.  Evans,  Son,  Lescher 

&  Webb  (1911),  4  B.  W. 

C.C.  138 51,52,  100 

Cole  V.  Hall,  103  111.  30 749 

Coley  V.   Railroad  Co.,    128 

Nor.  Car.  534;  S.  C,  129 

Nor.  Car.  407 820 

Collector  v.   Day,    11   Wall. 

113,  126 801,802 

Colon  V.  Lisk,  153  N.  Y.  188 

626,  632 
Commonwealth   v.    Alger,    7 

Cush.  85 625 

Conway     and     another     v. 

Pumpherston       Oil       Co. 

(1911),    48   Scotch    L.    R. 

632;4B.  W.  C.  C.  392...93.94 


Page 
Cook  V.  Whipple,  55  N.  Y. 

164 797,799 

Cooley  V.  Board  of  Wardens, 

12    How.    299,    315,    317, 

800,  810,  814,  838 
Cooper  Mfg.  Co.  v.  Ferguson, 

113  U.  S.  727 825 

Cornish  v.  Lynch  (1910),  3 

B.  W.  C.  C.  343 552 

Cory    Brothers    &    Co.    v. 

Hughes    (1911),    2   K.    B. 

738;  4  B.  W.  C.  C.  291 ...  .   480 
Cottrell  V.  Union  Pacific  Ry. 

Co.,  2  Wyo.  540 622 

Craig  V.  Insurance  Co.,  141 

U.  S.  638 826 

Crandall  v.  Nevada,  6  Wall. 

35 824 

Cranfield  v.  Ansell  (1910),  4 

B.  W.  C.  C.  57 472 

Craske  v.  Wigan  (1909),  100 

L.  T.  8;  2  B.  W.  C.  C.  35 

102,  107 
Cremins  v.   Guest,   Keen  & 

Nettlefold  (1908),  1  K.  B. 

469;  1  B.  W.  C.  C.  160. .  .80,  81 
Cronin  v.  Silver  (1911),  4  B. 

W.  C.  C.  221 95 

Crossfield  &  Sons  v.  Tanian, 

82  L.  T.  813;  2  W.  C.  C.  141  469 
Crutcher   v.    Kentucky,    141 

U.  S.  47 810 

Cunningham  v.  M'Naughton 

&  Sinclair  (1910),  47  Scotch 

L.  R.  781;  3  B.  W.  C.  C. 

577 473 

D 

Dallemagne  v.  Moisan,  197 
U.  S.  174 800 

Danby  Bank,  Receiver  of,  v. 
State  Treasurer,  39  Vt.  92 

725,  730 


TABLE    OF   CASES   REPORTED   AND   CITED 


xii 


Page 
Daniel   Ball,   The,    10  Wall. 

557 810,  815,  826,  833,  835 

Darbon  v.  Gigg  (1904),  7  W. 

C.  C.  32 127 

Darlington  v.  Roscoe  &  Sons 

(1906),  8  W.  C.  C.  4 212 

Darlington  v.  Roscoe  &  Sons 

(1910),  96  L.  T.  179;  9  W. 

C.  C.  1 322 

Darnley  v.  Canadian  Pacific 

Ry.  Co.,  14  B.  C.  R.  15;  2 

B.  W.  C.  C.  505 128 

Darnley  v.  Canadian  Pacific 

Railway  Co.  (1909),  15  B. 

C.  R.  324;  4  B.  W.  C.  C.  449  551 
David  V.  Windsor  Steam  Coal 

Co.  (1911),  4  B.  W.  C.  C. 
177 481 

Davidson  v.  Champion,  7 
Conn.  224 801 

Davidson  v.  New  Orleans,  96 
U.S.  97;  24  L.Ed.  616...   737 

Davies  v.  Point  of  Ayr  Col- 
lieries (1909),  2  B.  W.  C.  C. 
157 303 

Davies  v.  Rhymftey  Iron  Co., 
2  W.  C.  C.  22 81 

Day  V.  Markham  (1904),  6 
W.  C.  C.  115 320 

Dean  v.  London  &  North 
Western  Railway  Co., 
(1910),  3  B.  W.  C.  C.  351 .  .     66 

Debs,  In  re,   158  U.  S.  564 

811,  815,  816,  833 

Defiance  Water  Co.  v.  De- 
fiance, 191  U.S.  184 799 

Delaware,  The,  161  U.  S.  459  805 

Delfel  V.  Hanson,  2  Wash. 
194;  26  Pac.  220 720 

Dennick  v.  R.  R.  Co.,  103 
U.  S.  18 798 

Dent  v.  West  Virginia,  129 
U.  S.  114 828 


Page 

Devitt  &  Crosby  Magee  v. 
The  Owners  of  the  S.  S. 
"Bainbridge"  (1909),  2 
K.  B.  802;  2  B.  W.  C.  C. 
383 384 

Devons  v.  Alexander  Ander- 
son &  Sons  (1910),  48 
Scotch  L.  R.  187;  4  B.  W. 
C.  C.  354 360 

Dewberry  v.  Southern  Ry. 
Co.,  175  Fed.  Rep.  307. ..  .  833 

Dewhurst  v.  Mather  (1908), 

1  B.  W.  C.  C.  328 122 

Dewhurst  v.  Mather  (1908), 

2  K.  B.  754 173 

Dickinson  v.  Barmak  (1908), 

124  L.  T.  Newspaper,  403  105 

Disourdi  v.  Sullivan  Group 
Mining  Co.  and  another 
(1910),  15  B.  C.  R.  305;  4 
B.  W.  C.  C.  462 560 

Disourdi  v.  Sullivan  Group 
Mining  Co.  &  Maryland 
Casualty  Co.  (No.  2),  14 
B.  C.  R.  256;  2  B.  W.  C.  C. 
508 561 

Disourdi  v.  Sullivan  Group 
Mining  Co.  &  Maryland 
Casualty  Co.  (No.  3),  14 
B.  C.  R.  273;  2  B.  W.  C.  C. 
514 561 

Dobby  V.  Wilson,  Pease  &  Co. 
(1909),  2  B.  W.  C.  C.  370    482 

Doggett  V.  Waterloo  Taxi- 
Cab  Co.  (1910),  102  L.  T. 
874;3B.  W.  C.  C.  371....   116 

Donaldson  Brothers  v.  Cowan 
(1909),  46  Scotch  L.  R. 
920;2B.  W.  C.  C.  390...  471 

Donnachie  v.  United  Col- 
Heries  (1910),  47  Scotch 
L.  R.  412 126,  131 

Donnelly  v.  William  Baird  & 


xlii 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

Co.  (1908),  45  Scotch  L.  R. 

394;  1  B.  W.  C.  C.  95  . . . .  475 
Dothie  V.  MacAndrew  &  Co. 

(1908),  98  L.  T.  495;  1  B. 

W.  C.  C.  308 247 

Dotzauer   v.    Strang    Palace 

Hotel  (1910),  3  B.  W.  C.  C. 

387 69 

Douglas   V.    United    Mineral 

Mining  Co.   (1900),  2  W. 

C.  C.  15 127 

Dozier  v.  Alabama,  218  U.  S. 

124 804 

Dozier  v.  Fidelity  &  Casual- 
ty Co.,  46  Fed.  446;  13  L. 

R.  A.  114 54 

Dudley  v.  Mayhew,  3  N.  Y.  9  801 
Duncan  v.  Missouri,  152  U.  S. 

377 624 

Dunham  v.  Clare  (1902),  66 

L.T.  751;4W.C.C.102..  207 
Dunnigan  v.  Cavan  &  Lind 

(1911),  48  Scotch  L.R.  459; 

4B.  W.  C.  C.  386 406 

Durkee  v.  Janesville,  28  Wis. 

464;  9  Am.  Rep.  500 694 

£ 

Eamshaw  v.  Lancashire  & 
Yorkshire  Ry.  Co.  (1903), 
5  W.  C.  C.  28  90 

East  Kingston  v.  Towle,  48 
N.  H.  57 614 

Eaves  v.  Blaenclydach  Col- 
liery Co.  (1909),  2  K.  B.  73; 
2  B.  W.  C.  C.  329 241 

Edwards  v.  The  Alyn  Steel 
Tinplate  Co.  (1910),  3  B. 
W.  C.  C.  141 278 

Edwards  v.  International 
Coal  Co.  (1899),  5  W.  C.  C. 
21 97 

Eke  V,  Sir  WilUam  Hart-Dyke 


Page 

(1910),  2  K.  B.  677;  3  B. 

W.  C.  C.  482 66,67 

Elgin  J.   &   E.   Ry.   Co.   v. 

United    States,    168    Fed. 

Rep.  1 811 

Elliott  V.  Rex  (1904),  6  W.  C. 

C.  27 90 

Ellis  V.  Ellis  &  Co.  (1905),  92 

L.T.718;7W.  C.  C.  97.  ..119 
Ellis  V.  Knott  (1900),  2  W.  C. 

C.  116 484 

Ellis  V.  Lochgelly  Iron  &  Coal 

Co.,  (1909),  46  Scotch  L.  R. 

960;  2  B.  W.  C.  C.  136..   573 
El    Paso,    etc.,    Ry.    Co.    v. 

Gutierrez,    215    U.    S.    87 

798,  799,  803,  809,  810,  821,  823 
Emerson  v.  Gardiner,  8  Kan. 

452 720 

Emmerson  v.  Donkin  &  Co. 

(1910),  4B.  W.  C.  C.  74..  472 
Employer's    Liability    Cases, 

207  U.  S.  463.  .796,  809, 

812,  814,  827,  832,  838,  842 
Engel  V.  O'Malley,  219  U.  S. 

128 643,644 

Erie  R.  R.  Co.  v.  Erie  Transp. 

Co.,  204  U.  S.  220 819 

Evans  v.  Cook,  Lancashire  & 

Yorkshire     Accident     Ins. 

Co.,  Third  Parties  (1904), 

7  W.  C.  C.  41 350 

Evans    v.    Penwyllt    Dinas 

Silica  Brick  Co.  (1901),  4 

W.  C.  C.  101 118 

Evans    v.    Vickers,    Sons    & 

Maxim  (1910),  102  L.  T. 

199;  3  B.  W.  C.  C.  126; 

aff'd  (1910),  3  B.  W.  C.  C. 

403 483 

Exempt   Fireman's  Fund   v. 

Roome,  29  Hun  (N.  Y.),391  721 
Eyre  v.  Houghton  Maia  Col- 


TABLE    OF   CASES   REPORTED   AND    CITED 


xliii 


Page 
liery  Co.  (1910),  102  L.  T. 
R.385;3B.W.C.C.250..  477 

F 

Fairchild  v.  Rich,  68  Vt.  202  614 
Faircloth  v.  Waring  &  Gillow 

(1906),  8  W.  C.  C.  99 250 

Farmer  v.  Stafford,  Allen  & 

Sons  (1911),  4  B.  W.  C.  C. 

223 56 

Farwell  v.  Boston  &  Wor- 
cester R.  R.  Co.,  4  Met.  48  804 
Felt  V.  Denver,  etc.,  R.  Co., 

110  Pac.  Rep.  215 836 

Fennah  v.  Midland  &  Great 

Western  Railway  of  Ireland 

(1911),  45  Irish  L.  T.  192; 

4  B.  W.  C.  C.  440 104 

Fenton  v.  Thorley  &  Co.,  19 

T.  L.  R.  684 49 

Fenton    v.    Thorley    &    Co. 

(1903),  A.  C.  443;  5  W.  C. 

C.  1 48,53,55 

Fife    Coal    Co.    v.    Wallace 

(1909),  46  Scotch  L.  R.  727; 

2B.  W.  C.  C.  264 321 

Filer  v.  Stowell  Co.,   In  re, 

132  N.  W.  584 662 

Fire  Department  v.  Helf en- 
stein,  16  Wis.  136 722 

Fire  Department  v.  Noble,  3 

E.  D.  Smith  (N.  Y.),  440. .  721 
Fire  Department  v.  Wright,  3 

E.  D.  Smith  (N.  Y.),  453. .  721 
Firemen's   Benevolent   Assn. 

V.  Lounsbury,  21  111.  511; 

74  Am.  Dec.  115 721,744 

Fitzgerald  v.  Clarke  &  Son 

(1908),99L.T.  101;2K.B. 

796;  1  B.  W.  C.  C.  197.72,  100 
Fitzpatrick  v.  Hindley  Field 

Colliery  Co.  (1901),  3  W. 

C.  C.37;4W.  C.  C.  7....     77 


Page 

Fleetwood  v.  Read,  21  Wash. 

547;  58  Pac.  665;  47  L.  R. 

A.  205 750,753 

Fletcher  v.  Owners  of  Steam- 
ship "Duchess,"  4  B.  W. 

C.  C.  317 88 

Foley  V.  Railroad,  64  Iowa,  644  831 
Follis   v.    Schaake    Machine 

Works  (1908),  13  B.C.  471; 

1  B.  W.  C.  C.  442 315 

Ford   V.    Wren   &    Dunham 

(1903),  5  W.  C.  C.  48 7 

Forster  v.  Pierson  (1906),  8 

W.  C.  C.  19 132 

Foster  v.  Morse,  132  Mass. 

354 653 

Fox  V.   M.  F.  A,  Assn.,  96 

Wis.  390;  71  N.  W.  363. . .  679 
France  v.  State,  57  Ohio  St,  1  780 
Freeman  v.  Mercantile  Mut. 

Ace.  Assn.,  156  Mass.  351  65 
French  v.  Barber  Asphalt  Co., 

181  U.S.  324 828 

Fretwell  v.  Qty  of  Troy,  18 

Kan.  274 752 

Frisbie  v.  United  States,  157 

U.  S.  160;  15  Sup.  Ct.  586; 

39L.  Ed.  657 736 

Fulford  v.  Northfieet  Coal  & 

Ballast   Co.    (1907),    1   B. 

W.  C.  C.  222 56 

Fulgham  v.  Midland  Valley 

R.  Co.,  167  Fed.  Rep.  660  832 
Furniss   v.    Gartside   &   Co. 

(1910),  3  B.  W.  C.  C.  411 

52,  96,  100 
Furniss,  Withy  &  Co.  v.  Ben- 
nett (1910),  3  B.  W.  C.  C. 

195 406 

G 

Galena  v.  Jacobs,  20  111.  478  819 
Gane  v.  Norton  Hill  CoUiery 


xliv 


TABLE    OF   CASES   REPORTED   AND    CITED 


Co.  (1909),  100  L.  T.  979;  2 

B.  W.  C.  C.  42 78,452 

Garfinkle,  In  re,  37  Wash. 
650;  80  Pac.  188 750 

Garnett  et  al.,  In  re,  141  U.  S. 
1 826 

Gentsch  v.  State,  71  Ohio  St. 
151 783 

George  v.  Glasgow  Coal  Com- 
pany (1908),  99  L.  T.  782;  2 

B.  W.  C.  C.  125 128 

George  v.  Glasgow  Coal  Co., 

45  Scotch  L.  R.  687;  1  B. 

W.  C.  C.  239 131 

German  Alliance  Ins.  Co.  v. 

Hale,  219  U.  S.  307 803 

Gibbons  v.  Ogden,  9  Wheat. 

1,  196 809,816,824 

Gibson  v.  Dunkerley  Brothers 

(1910),  3B.W.C.C.  345..  101 
Gilbert    v.    Owners    of    the 

Nizam  (1910),  3  B.  W.  C. 

C.  455 86 

Gilbey  v.  The  Great  Western 

Railway    Co.    (1910),    102 

L.  T.  202;  3  B.  W.  C.  C.  135  404 

Gillivray  v.  Northern  Coun- 
ties Institute  for  the  Blind 
(1911),  48  Scotch  L.R.  811; 
4B.  W.  C.  C.  429 121 

Gilman  v.  Philadelphia,  3 
Wall.  713 810,811 

Gilmour  v.  Dorman,  Long  & 
Co.  (1911),  105  L.  T.  54;  4 
B.  W.  C.  C.  279 73,75 

Gilroy  v.  Mackie  &  Others 
(Leith  Distress  Committee) 
(1909),  46  Scotch  L.R.  325; 
2B.  W.  C.  C.  269 120 

Giozza  V.  Tieman,  148  U.  S. 
657 828 

Gladson  v.  Minnesota,  166 
U.  S.  427 825 


Page 
Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S. 196  807,  846 
Goodall  &  Clarke  v.  Kramer 

(1910),  3B.W.C.C.  315..  474 
Gough  V.  Crawshay  Brothers 

(1907),  98  L.  T.  327;  1  B. 

W.  C.  C.  351 252 

Gough  V.  Crawshay  Brothers, 

1  B.  W.  C.  C.  374 210 

Gourlay  v.  Murray  (1909),  45 

Scotch  L.  R.  577;  1  B.  W. 

C.  C.  335 208 

Grand  Trunk  Ry.  Co.  v.  Rich- 
ardson, 9  U.  S.  454 642 

Granick  v.  British  Columbia 

Sugar  Refinery  Co.  (1910), 

15  B.  C.  R.  193;  4  B.  W. 

C.  C.  452;  rev'g  (1909)  14 

B.C.  R.  251;2B.  W.C.  C. 

511 129,454 

Grant  &  Aldcroft  v.  Conroy 

(1904),  6  W.  C.  C.  153...  294 
Grant  v.   Glasgow  &  South 

Western       Railway       Co. 

(1907),    45   Scotch   L.    R. 

128;  1  B.  W.  C.  C.  17 103 

Great  Northern  Ry.  Co.  v. 

Dawson  (1905),  92  L.  T. 

145;  7  W.  C.  C.  114 247 

Greaves  v.  Mulliners  (1901), 

3  W.C.  C.  189 250 

Greenhill  v.  The  Daily  Rec- 
ord,   Glasgow    (1909),    46 

Scotch  L.  R.  483;  2  B.  W. 

C.  C.  244 Ill 

Groves     v.     Burroughes     & 

Watts  (1911),  4  B.W.C.C. 

185 68 

Griffith  v.  Connecticut,  218 

U.  S.  572 803 

Griga    v.    Owners    of    Ship 

"Harelda"(1910),  26T.  L. 

R.272;3B.  W.C.C.  116..  407 


TABLE    OF   CASES   REPORTED   AND    CITED 


xlv 


Grissell  v.  Housatonic  R.  R. 

Co.,  54  Conn.  447 641 

Guest,  Keen  &  Nettlefolds  v. 

Winsper  (1911),  4  B.  W.  C. 

C.  289 480 

Gulf,  Colorado,  etc.,  R.  R.  v. 

Ellis,  165  U.  S.  150. . .  .828,  829 
Gulf,  etc.,  R.  R.  Co.  v.  Hef- 

ley,  158  U.  S.  98 797,  846 

Gundling    v.    Chicago,    177 

U.  S.  183;  20  Sup.  Ct.  633; 

44  L.  Ed.  725 730 

H 

Hall  V.  De  Cuir,  95  U.  S.  485 

805,  824 

Hall  V.  Furness,  Withy  &  Co. 
(1909),  3  B.  W.  C.  C.  72..  398 

Hall  V.  Tam worth  Colliery 
Co.  (1910),  4  B.  W.  C.  C. 
107 318 

Hall  V.  West  &  Slade  Mill 
Co.,  39  Wash.  447;  81  Pac. 
915 734 

Hallinger  v.  Davis,  146  U.  S. 
314 624 

Hamilton  Co.  v.  Massachu- 
setts, 6  Wall.  638;  18  L.  Ed. 
904 751 

Hancock  v.  British  Westing- 
house  Electric  Co.  (1910), 
2  B.  W.  C.  C.  210 361 

Hanover  Nat.  Bank  v.  Moy- 
ses,  186  U.S.  181 799 

Hapelman  v.  Poole  (1908),  25 
T.  L.  R.  155;  2  B.  W.  C.  C. 
48 67,99 

Harding  v.  Brynddu  Colliery 
Co.  (1911),  2  K.  B.  747;  4 
B.  W.  C.  C.  269 94 

Harland  &  Wolff  v.  Radcliflfe 
(1909),  43  Irish  L.T.  166;  2 
B.  W.  C.  C.  374 407 


Page 
Harrison  v.  Whitaker  Bros., 

2  W.  C.  C.  12 98 

Hartford  F.  Ins.  Co.  v.  Chi., 

Mil.  &  St.  Paul  Ry.  Co.,  62 

Fed.  Rep.  904 642 

Hartford  Ins.  Co.  v.  C,  M.  & 

St.  P.  Ry.  Co.,  70  Fed.  Rep. 

201;  17  CCA.  62;  30  L.R. 

A.  193;  S.  C,  175U.  S.  91; 

20  Sup.  Ct.  33;  44  L.  Ed.  84  667 
Hartley  v.  United  States,  3 

Hayw.  (Tenn.)  45 800 

Hathaway  v.  Argus  Printing 

Co.  (1900),  3  W.  C  C  177  248 
Hawkes  v.  Richard  Colfes  & 

Sons  (1910),  3  B.  W.  C  C 

163 • 573 

Hawkins  v.  Powell's  Tillery 

Steam  Coal  Co.  (1911),  104 

L.  T.  365;  4  B.  W.  C  C  178  106 
Hayes  v.  Missouri,  120  U.  S. 

68 624 

Haylett  v.  Vigor  &  Co.  (1908), 

IB.  W.  CC.282 68 

Hazel  Kirke,   The,   25   Fed. 

Rep.  601,  607 833 

Hendricksen    v.    Owners    of 

Steamship      ' '  Swanhilda, ' ' 

(1911),  4B.W.C.C.  233..  235 
Hendry  v.  United  Collieries 

(1908),    45   Scotch    L.    R. 

944;  1  B.  W.  C  C  289.  . . .  323 
Hendry  v.  The  United  Col- 
lieries   (1910),    47    Scotch 

L.  R.  635;  3  B.  W.  C  C 

567 79 

Hennington  v.  Georgia,   163 

U.  S.  299 825 

Hensey  v.   White   (1900),    1 

Q.  B.  481;2  W.  CC  1.  .55,57 
Hewlett  V.  Hepburn,  2  W.  C 

C  123 243 

Hewitt  &  Others  v.  Owners 


xlvi 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

of  the  Ship  "Dutchess" 
(1910),  192  L.  T.  204;  3  B. 
W.  C.  C.  239 86 

Hicks  V.  Maxton  (1907),  1  B. 
W.  C.  C.  150 45 

Higgins  V.  Campbell  &  Har- 
rison &  Turvey  v.  Brintons 
Limited  (1904),  1  K.  B. 
328;  6  W.  C.  C.  1;  aff'd 
(1905),  A.  C.  230;  7  W.  C. 
C.  1 68 

Higgins  V.  Railroad  Co.,  155 
Mass.  176 798 

Hill  V.  Begg  (1908),  1  B.  W. 
C.  C.  320 121 

Hill  V.  Begg  (1908),  2  K.  B. 
802 174 

Hill  V.  Granby  Consolidated 
Mines  (1906),  12  B.  C.  118; 
1  B.  W.  C.  C.  436 125 

Hill  V.  Ocean  Coal  Co,  (1909), 
3B.  W.  C.  C.  29 239 

Hindman  v.  Boyd,  42  Wash. 
.17;84Pac.  609 705 

Hoddinott  v.  Newton  Cham- 
bers &  Co.  (1900),  3  W.  C. 
C.  74 72 

Hodgson  V.  Owners  of  West 
Stanley  Colliery  (1910), 
102L.  T.  194;  A.C.  (H.L.) 
229;  3   B.   W.   C.  C.  260 

315,  317,  324 

Hoke  V.  Henderson,  4  Dev. 
15 618 

Holden  v.  Hardy,  169  U.  S. 
366;  18Sup.  Ct.  383;42  L. 
Ed.  780  .623,  627,  727,  737,  757 

Holraes  v.  Great  Northern 
Ry.  Co.,  2W.  C.  C.  19...     81 

Holness  v.  G.  N.  Rail.  Co. 
(1900),  2  Q.  B.  409;  2  W. 
C.  C.  19 80 

Holness  v.  Mackay  &  Davis 


Page 
(1899),  80  L.  T.  831;  1  W. 
C.  C.  13 74,75 

Hoist  V.  Roe,  39  Ohio  St.  340; 
48  Am.  Rep.  459 749 

Holt  V.  Cummings,  102  Pa. 
212;  48  Am.  Rep.  199 719 

Holt  V.  Yates  &  Thom  (1909), 
3B.  W.  C.  C.  75 482 

Honor  v.  Painter  (1911),  4  B. 
W.  C.  C.  188 61 

Hood,  H.  P.,  &  Sons  v.  Mary- 
land Cas.  Co.,  206  Mass. 
223;92N.  E.  Rep.  329...     64 

Hooksett  V.  Concord  R.  R. 
Co.,  38  N.  H.  242 720 

Hooper  v.  California,  155 
U.S.  648 807,825,826 

Hopkins  v.  United  States,  171 
U.  S.  592 824 

Hopwood  V.  Olive  &  Parting- 
ton (1910),  3  B.  W.  C.  C. 
357 132 

Horsman  v.  Glasgow  Naviga- 
tion Co.  (1909),  3  B.  W.  C. 
C.  27 574 

Hosegood,  B.,  &  Sons  v.  Wil- 
son (1910),  4  B.  W.  C.  C.  30  486 

Hoskins  v.  J.  Lancaster 
(1910),  3B.  W.  C.  C.  476.     76 

Houghton  V.  Sutton  Heath  & 
Lea  Green  Colliers  Co. 
(1900),  3  W.  C.  C.  173....  248 

Houston  V.  Moore,  5  Wheat. 
1,  48 800,  826 

Howard  v.  Illinois  Central 
R.  R.  Co.,  207U.  S.  463..   803 

Howell  V.  Bradford  &  Co. 
(1911),  104  L.  T.  433;  4  B. 
W.  C.  C.  203 323 

Ho  wells  V.  Vivian  &  Sons 
(1901),  85  L.  T.  529;  4  W. 
C.  C.  106 315 

Howlan  v.  N.  Y.  &  N.  J.  Tele- 


TABLE   OF   CASES   REPORTED   AND   CITED 


xlvii 


Page 
phone  Co.,  131  App.  Div. 
(N.  Y.),  443;  115  Supp.  316 

45,47 

Hoxiev.  N.Y.,  N.H.&H.  R. 
Co.,    82    Conn.    352.  .789, 

800,  827,  830,  833 

Hoxie  V.  N.  Y.,  N.  H.  &  H. 
R.  R.  Co.,  73  Atl.  Rep.  764  821 

Huckle  V.  The  London  Coun- 
ty Council  (1910),  3  B.  W. 
C.  C.  536 7 

Huckle  V.  The  London  Coun- 
ty CouncU  (1910),  4  B.  W. 
C.  C.  113 571 

Hudson  County  Water  Co.  v. 
McCarter,  209  U.  S.  349;  28 
Sup.  Ct.  529;  52  L.  Ed.  828  731 

Hughes  V.  Coed  Talon  Col- 
liery Co.,  100  L.  T.  555;  2 
B.W.  C.  C.  159 361 

Hughes  V.  Postlethwaite 
(1910),  4  B.W.  C.C.  105..   113 

Hugo  V.  H.  W.  Larkins  &  Co. 
(1910),  3B.W.  C.C.  228..     70 

Humphreys  v.  City  of  London 
Electric  Lighting  Co. 
(1911),  4  B.W.  C.C.  275..   277 

Huntington  v.  Attrill,  146 
U.  S.  657 798 

Hurtado  v,  California,  110 
U.  S.  516;  4  Sup.  Ct.  Ill, 
292;  28  L.  Ed.  232.  .624, 

728,  828,  834 

Huus  V.  N.  Y.  &  Porto  Rico 
S.  S.  Co.,  182  U.  S.  392...  815 

Hyndman  v.  Craig  &  Co. 
(1910),  44  Irish  L.  T.  11;  4 
B.  W.  C.  C.  438 88 


Ibrahim  Said  v.  J.  H.  Wels- 
ford  &  Co.  (1910),  3  B.  W. 
C.  C.  233 399 


Page 

Illinois  Cent.  R.  R.  v.  Illinois, 
163  U.  S.  142 825 

Indianapolis  &  G.  R.  R.  v. 
Foreman,  162  Ind.  85 831 

IngersoU  v.  Stockbridge  & 
Pittsfield  R.  R.  Co.,  8  Al- 
len, 438 642 

Int.  Com.  Comm.  v.  111.  Cent. 
R.  R.  Co.,  215  U.  S.  452.  .  815 

Irons  V.  Davis  &  Timmins 
(1899),  80  L.  T.  673;  1  W. 
C.  C.  26 275 

Ismay-Imrie  &  Co.  v.  Wil- 
liamson (1908),  42  Irish 
L.  T.  213;  1  B.W.  C.C.  232     52 

Ives  V.  South  Buffalo  Ry.  Co., 
201  N.  Y.  271;  rev'g  140 
App.  Div.  921..  2,  5,  39,  40, 

157,  592,  653,  667,  760,  774 

J 

Jackson    v.    General    Steam 

Fishing  Co.  (1909),  A.  C. 

523;  101  L.T.  401;  2  B.W. 

C.C.  56 73,84 

Jacobs,  Matter  of,  98  N.  Y. 

98 616,632 

James    v.    Ocean    Coal    Co. 

(1904),  6  W.  C.  C.  128....  251 
Jamieson  v.  Clark  (1908),  46 

Scotch  L.  R.  73;  2  B.  W. 

C.  C.  228 114 

Jemming     v.     Railroad,     96 

Minnesota,  302 831 

Jenkinson  v.  Harrison  Ains- 

lie&Co.  (1911),4B.W.C. 

C.  194 93 

Jensen  v.  South  Dakota  Cent. 

R.R.Co.,25S.D.506;127 

N.  W.  650 720,743 

Jensen  v.  Union  Pacific  Ry. 

Co.,  6  Utah,  253 622 


Xlviii        TABLE    OF   CASES   REPORTED   AND    CITED 


Page 
Jesson  V.  Bath  (1902),  4  W. 

C.  C.  9 82 

Jobson  V.  W.  Cory  &  Sons 

(1911),  4B.W.C.C.  284..  323 
John    V.    Albion    Coal    Co. 

(1901),  4  W.  C.  C.  15 127 

Johnson  v.  Adshead,  2  W.  C. 

C.  158 407 

Johnson  v.  Great  Northern 

Ry.  Co.,  178  Fed.  Rep.  643, 

646 836 

Johnson  v.  Marshall,  Sons  & 

Co.  (1906),  94  L.  T.  828; 

8  W.  C.  C.  10..  125,  126, 

128,  130,  403 
Johnson     v.     Monasterevan 

General  Store  Co.  (1908), 

42  Irish  L.  T.  268;  2  B.  W. 

C.  C.  183 123 

Johnson   v.    Phoenix    Bridge 

Co.,  133App.  Div.807;118 

Supp.  88 45 

Johnson  v.  Ry.  Co.,  43  Minn. 

222 830,831 

Johnson  v.   So.  Pacific  Co., 

196  U.S.  1..  805,  810,  811, 

815,  821,  834,  835,  838 
Johnson  v.  Wootton  (1911), 

4B.  W.  C.  C.  258 359 

Johnson  &  Others  v.  Owners 

of       Ship       "Torrington" 

(1909),  3  B.  W.  C.  C.  68..     53 
Jones    V.    London    &    South 

Western  Ry.  Co.  (1901),  3 

W.  C.  C.  46 128 

Jones    V.    Ocean    Coal    Co. 

(1899),  80  L.  T.  582;  1  W. 

C.  C.  94 243 

Jones  V.  Owners  of  the  Ship 

"Alice  and  Eliza"  (1910),  3 

B.  W.  C.  C.  495  .• 112 

Jones  V.  Walker  (1899),  1  W. 

C.  C.  142 249 


Page 
Julian  V.  Model  B.  L.  &  I. 
Assn.,    116    Wise.    79;    92 
N.  W.  561;  61  L.  R.  A.  668  667 

E 

Kane  v.  Merry  &  Cunning- 

hame  (1911),  48  Scotch  L. 

R.430;4B.W.C.C.379..  91 
Kansas  City,  etc.  v.  Fhppo, 

138  Ala.  487 800 

Kansas,  etc.,   R.   R.  Co.  v. 

Smith,  6  Heisk,  174 819 

Karemaker  v.  Owners  of  S.  S. 

"Corsican,"(1911)4B.  W. 

C.  C.  295 54 

Kearon  v.  Kearon  (1911),  42 

Irish  L.  T.  96;  4  B.  W.  C. 

C.  435 82 

Keast  V.  The  Barrow  Haem- 
atite Steel  Co.  (1899),  1  W. 

C.  C.  99 242 

Keeling   v.    New    Monckton 

Collieries  (1910),  4  B.  W. 

C.  C.  49 319 

Keller  v.  United  States,  213 

U.  S.  138 826 

Kelly  V.  Auchenlea  Coal  Co. 

(1911),    48   Scotch    L.    R. 

768;4B.  W.  C.  C.  417....  67 
Kelly  V.  Kerry  County  Coun- 
cil (1908)  42  Irish  L.  T.  23; 

1  B.  W.  C.  C.  194 102 

Kelly  V.  Owners  of  the  "Foam 

Queen"  (1910),  3  B.  W.  C. 

C.  113 87 

Kelly   V.   York   Street   Flax 

Spinning    Co.    (1909),    43 

IrishL.  T.J.81;2B.  W.C. 

C.  493 243 

Kemmler,  Matter  of,  136  U. 

S.  4.36 624 

Kempson      v.      Owners     of 


TABLE   OF   CASES   REPORTED   AND   CITED 


xlix 


Page 

Schooner     ' '  Moss     Rose ' ' 

(1910),  4B.  W.  C.C.  101..  574 
Kerr  v.  William  Baird  &  Co. 

(1911),    48   Scotch    L.    R. 

646;4B.  W.  C.  C.  397....  92 
Kerr  and  another  v.  Stewart 

(1909),  43  Irish  L.  T.  119; 

2B.  W.  C.  C.  454 398 

Kendall  v.  United  States,  12 

Pet.  524,  618 800 

Keyser    v.    Burdick    &    Co. 

(1910),  4  B.  W.  C.  C.  87..  83 
Kidd,  Dater  &  Price  Co.  v. 

Musselman  Grocer  Co.,  217 

U.S.  461;30Sup.  Ct.  606; 

54  L.  Ed.  839 730 

Kiley  v.  C,  M.  &  St.  P.  Ry. 

Co.,    142   Wise.    154;    125 

N.  W.  464 669 

Kiley  v.  Chicago,  Milwaukee 

&  St.  Paul  Ry.  Co.,   138 

Wise.  215 811,812 

Kilpatrick   v.    Grand   Trunk 

Ry.  Co.,  74  Vt.  288 820 

King   V.   Phoenix   Assurance 

Co.  (1910),  3  B.  W.  C.  C. 

442 561 

King   V.    Sarria,    69    N.    Y. 

31 798 

Kirkham  v.  Wheeler-Osgood 

Co.,  39  Wash.  415;  81  Pac. 

869 734 

Kitchenham  v.  Owners  of  S.  S. 

"Johannesburg"  (1910),  4 

B.  W.  C.  C.  91;  aff'd  4  B. 

W.  C.  C.  311 87 

Knott  V.  Tingle  Jacobs  &  Co. 

(1910),  4  B.  W.  C.  C.  55..  249 
Knowles,  Ex  parte,  5  Cal.  301  801 
Krzus  V.   Crow's   Nest  Pass 

CoalCo.  (1911),  4B.  W.C. 

C.  469 321 

Kyle  V.  M'Gintys  (1911),  48 


Page 
Scotch  L.  R.  474;  4  B.  W. 
C.  C.  389 359 

L 

Lake  Shore  Ry.  v.  Smith,  173 

U.  S.  684 825 

Langley  v.  Reeve  (1910),  3  B. 

W.  C.  C.  175 62 

Lankester  v.   Miller-Hether- 

ington  (1910),  4  B.  W.  C.  C. 

80 352 

Lawrie   v.    James    Brown   & 

Co.  (1908),  45  Scotch  L.  R. 

477;1B.  W.  C.  C.  137....  573 
Lawton  v.  Steele,  152  U.  S. 

133;  14  Sup.  Ct.  499;  38  L. 

Ed.  385 626,726 

Leach  v.  Hickson  (1911),  4  B. 

W.  C.  C.  153 360 

Leach  v.  Oakley,  Street  &  Co. 

(1910),  4B.  W.  C.  C.  91..  83 
Leavitt  v.  Morris,  105  Minn. 

170;  117  N.  W.  393;  17  L. 

R.  A.  (N.  S.)  984 749 

Lee  V.  William  Baird  &  Co. 

(1908),  45  Scotch  L.  R.  717; 

1B.W.C.C.34 237 

Leeds  &  Liverpool  Canal  Co. 

V.  Hesketh   (1910),  102  L. 

T.  663;  3  B.  W.  C.  C.  301 . .  473 
Lees  V.  Waring  &  Gillow  (Fer- 
guson, third  party)  (1909), 

2B.  W.  C.  C.  474 280 

Lees  &  Sykes  v.  Dunkerley 

Brothers  (1910),  103  L.  T. 

467;  4  B.  W.  C.  C.  115. ...  351 
Lemieux  v.  Young,  211  U.  S. 

489;  29  Sup.  Ct.  174;  53  L. 

Ed.  295 730 

Leishman  v.  William  Dixon 

(1910),  47  Scotch  L.  R.  410; 

3  B.  W.  C.  C.  560 126 


1 


TABLE   OF   CASES   REPORTED   AND    CITED 


Page 
Leisy  v.  Hardin,   135  U.  S. 

100 826 

Leonard  v.  Columbia  &  Co., 

84  N.  Y.  48 798 

License  Cases,  5  How.  504  .  .  827 
Lindsay  v.  M'GIashen  &  Son 

(1908),  45  Scotch  L.  R.  559; 

1B.W.C.C.85 319 

Lindsley  v.  Carbonic  Gas  Co., 

220U.  S.  61,  78 844 

Littleford  v.  Connell  (1909), 

3  B.  W.  C.  C.  1 210 

Liverpool  S.  S.  Co.  v.  Phoenix 

Ins.  Co.,  129  U.  S.  397. . . .  796 
Lloyd  V.  Sugg  &  Co.  (1900), 

81  L.  T.  768;  2  W.  C.  C.  5    64 
Loan  Association  v.  Topeka, 

20  Wall.  655;  22  L.  Ed.  455  731 
Lochner  v.  New  York,   198 

U.S.  45 631,829 

Loewe  v.  Lawlor,  208  U.  S. 

274 816 

London     &     North- Western 

Railway  v.  Taylor  (1910), 

4B.  W.  C.  C.  11 479 

Longyear  v.  Buck,  83  Mich. 

236;  47  N.  W.  234;  10  L.  R. 

A.  43 749 

Lord  V.  Equitable  Life  Assur. 

Soc,  194  N.  Y.  212 649 

Losh  V.  Evans  &  Co.  (1902), 

5  W.  C.  C.  17 97 

Lottawanna,   The,   21    Wall. 

558,    577.. 776,    826,    838, 

841,  842,  846 
Lottery  Case,  188  U.  S.  321, 

353,355 816,842 

Louisville  &  N.  Ry.  v.  Ken- 
tucky, 161  U.  S. 677. . .825,  827 
Louisville  &  Nashville  R.  R. 

Co.  V.  Melton,  218  U.  S. 

36 803,  823,  829,  834,  844 

Louisville,  N.  O.  &  T.  Ry. 


Page 

Co.  V.  Mississippi,  133  U.  S. 

587 805,825 

Lovelady  &  Others  v.  Berrie 

(1909),  2  B.  W.  C.  C.  62..  62 
Lowe  V.   M.   Myers  &  Sons 

(1906),  2  K.  B.  265;  95  L. 

T.  35;  8  W.  C.  C.  22. .  .397,  407 
Lowe  V.  Pearson  (1899),  79 

L.  T.  654;  1  W.  C.  C.  5...  93 
Lowell  V.  Boston,  111  Mass. 

454;  15  Am.  Rep.  39 731 

Lowry  v.  Sheffield  Coal  Co. 

(1907)24T.  L.  R.  142;1B. 

W.  C.  C.  1 109 

Luxton  v.  North  River  Bridge 

Co.,  153  U.  S.  525 814 

Lyman  v.  Boston  &  Worces- 
ter   R.     Corp.,     4     Cush. 

(Mass.)  288 720 

Lynch  v.  Pierce,  1  Bradbury's 

P.  &P.  R.  594 110 

Lyng  V.  Michigan,  135  U.  S. 

161;  10  Sup.  Ct.  725;  34  L. 

Ed.  150 733 

Lysons  v.  Andrew  Knowles  & 

Sons  (1901),  3  W.  C.  C.  1 . .  251 

M 

M'Carthy  v.  Norcott  (1908), 

43  Irish  L.  T.  17;  2  B.  W. 

C.  C.  279 123 

McCulloch   V.    Maryland,    4 

Wheat.  316;  4  L.  Ed.  579 

693,  844 
McCune  v.  Essig,  199  U.  S. 

382 818 

McDermott  v.  Owners  of  S.  S. 

Tintoretto  (1910),  103  L.  T. 

769;  4  B.  W.  C.  C.  123....  279 
McDonald     v.     Owners     of 

Steamship  ' '  Banana ' ' 

(1908),  IB.  W.  C.  C.  185..  89 
McGlone    v.    Womack,    129 


TABLE    OF   CASES   REPORTED   AND   CITED 


Page 
Ky.  274;  111  S.  W.  688;  17 
L.  R.  A.  (N.  S.)855 747 

McKee  v.  Great  Northern 
Railway  Co.  (1908),  42 
Irish  L.  T.  132;  1  B.  W.  C. 
C.  165 79 

McKnight  v.  Hodge,  55  Wash 
289;  104  Pac.  504 750 

McKrill  V.  Howard  &  Jones 
(1909),2B.  W.  C.  C.  460..   119 

McLean  v.  Moss  Bay  Haem- 
atite Iron  &  Steel  Co. 
(1910),  3B.W.C.C.  402..  317 

McLean  v.  Moss  Bay  Haem- 
atite Iron  &  Steel  Co. 
(1909),  100  L.  T.  781;2B. 
W.  C.  C.  282. 320 

M'Clelland  v.  Todd  (1909), 
43  Irish  L.  T.  J.  75;  2  B. 
W.  C.  C.  472 112 

McNamara  v.  Washington 
Terminal  Co.,  38  Wash. 
Law  Rep.  343 824 

McNamara  &  Co.  v.  Burtt 
(1911),  4B.  W.  C.  C.  151.  478 

McNeil,  Ex  parte,  13  Wall. 
423 797,799 

McNicholas  v.  Dawson,  68 
L.  J.  (Q.  B.)  470 819 

McShane  v.  Harrison  (March 
1912),  reported  in  "The 
Policy  Holder,"  April  10, 
1912,  p.  296 50 

Macandrew  v.  Gilhooley 
(1911),  48  Scotch  L.  R. 
511;4B.  W.  C.  C.  370....  572 

Mackinnon  v.  Miller  (1909), 
46  Scotch  L.  R.  299;  2  B. 
W.  C.  C.  64 51,179 

Maginn  v.  Carlingford  Lough 
Steamship  Co.  (1909),  43 
Irish  L.  T.  123;  2  B.  W.  C. 
C.  224 209 


Page 
Magoun  v.  111.  Trust  &  Sav. 

Bank,  170  U.  S.  283,  294 

613,  829 
Mahomed  v.  Maunsell  (1907), 

1  B.  W.  C.  C.  269 6 

Main  Colliery  Co.,  v.  Davies 

(1900),  80  L.  T.  674;  2  W. 

C.  C.  108 317 

Main  Colliery  Co.  v.  Davies 

(1900),  A.  C.  358;  1  W.  C. 

C.  92 324 

Malone  v.  Cayzer,  Irvine  & 

Co.  (1908),  45  Scotch  L.  R. 

351;1B.  W.  C.  C.  27 208 

Malone  v.  Railroad,  65  la.  417  831 
Marbury     v.      Madison,      1 

Cranch,  137;  2  L.  Ed.  60 

692,  697 
Marks  v.  Carne  (1908),  100 

L.  T.  950;  2  B.  W.  C.  C. 

186 179 

Marshall    v.    East    Holywell 

Coal  Co.  (1905),  7  W.  C.  C. 

19 55 

Marshall    v.    Orient    Steam 

Navigation  Co.    (1910),    1 

K.  B.  79;  3  B.  W.  C.  C.  15  385 
Marshall  v.  Owners  of  Ship 

"Wild  Rose"  (1910),  3  B. 

W.  C.  C.  514 403 

Marshall  v.  Owners  of  Ship 

"Wild  Rose"   (1909),   100 

L.  T.  739;  2  B.  W.  C.  C.  76  402 
Martin  v.  Barnett  (1910),  3 

B.  W.  C.  C.  146 237 

Martin   v.   Fullerton   &   Co. 

(1908),    45   Scotch   L.    R, 

812;1B.  W.  C.  C.  168....     85 
Martin  v.  Hunter,  1  Wheat. 

304;  4  L.  Ed.  97 692,  800 

Martin  v.  Pittsburg  &  Lake 

Erie  R.  R.  Co.,  203  U.  S. 

284. . 776, 805, 823, 829, 834, 841 


lii 


TABLE   OF   CASES   REPORTED   AND   CITED 


Martin   v.    The   Southwark, 

191  U.  S.  1 805 

Martin  v.  Travelers'  Ins.  Co., 

IF.  &F.  505 57 

Marvin  v.  Trout,  199  U.  S. 

212 634,635 

Matthews    v.    Bedworth 

(1899),  1  W.  C.  C.  124....   100 
Mathews  v.  St.  Louis  &  San 

Francisco  R.  R.  Co.,   121 

Mo.  298;  24  S.  W.  591;  25 

L.  R.  A.  161 720 

Maundrell  v.  Dunkerton  Col- 
lieries Co.  (1910),  4  B.  W. 

C.  C.  76,  78 485 

Max  Morris,  The,  137  U.  S.  1 

811,  819,  834 
M'Daid  v.  Steel  (1911),  48 

Scotch  L.  R.  765;  4  B.  W. 

C.  C.  412 92 

M'Dougall      V.      M'Dougall 

(1911),   48    Scotch    L.   R. 

315;4B.  W.  C.  C.  373....   112 
Mead  v.  Lockhart  (1909),  2 

B.  W.  C.  C.  398 469 

Medler  v.  Medler  (1908),  1  B. 

W.  C.  C.  332 319 

Merry     &     Cuninghame     v. 

Black    (1909),    46    Scotch 

L.  R.  812;  2  B.  W.  C.  C.  372  276 
Merryman,  Ex  parte,  17  Fed. 

Cases,  9,  487 801 

M'Ghee  v.  Summerlee  Iron 

Co.  (1911),  48  Scotch  L.  R. 

807;4B.  W.  C.  C.  424....  237 
Midland  Ry.  Co.  v.  Sharpe 

(1904),  6  W.  C.  C.  119....  247 
Milner  v.  Great  Northern  Ry. 

Co.  (1900),  82  L.  T.  187;  2 

W.  C.  C.  51 108 

Minneapolis  &  St.  L.  Ry.  Co. 

V.    Beckwith,    129    U.    S. 

26 622 


Page 
Minneapolis,    etc.,    Railway 

Co.  V.  Herrick,  127  U.  S. 

210;  8  Sup.  Ct.  1176;  32  L. 

Ed.    109.. 613,    724,    810, 

823,  829,  833 
M'Innes  v.  Dunsmuir  &  Jack- 
son (1908),  45  Scotch  L.  R. 

804;  IB.  W.  C.  C.  226....     57 
Minnesota  Iron  Co.  v.  Kline, 

199  U.  S.  593;  26  Sup.  Ct. 

159;  50  L.  Ed.  322;  Stats. 

Wise.  §1816..  18,  652,  655, 

669,  810,  820,  823,  829 
Minor  v.  Erie  R.  R.  Co.,  171 

N.  Y.  566 649 

Minneapolis,  St.  P.  &  S.  S.  M. 

R.  Co.  V.  R.  R.  Com.,  136 

Wise.  146;  116  N.  W.  905; 

17L.  R.  A.  (N.S.)821....  677 
Missouri  R.  R.  Comrs.  v.  111. 

Central  R.  R.  Co.,  203  U.  S. 

335 798 

Missouri,  K.  &  T.  R.  R.  v. 

Medaris,  60  Kan.  151 831 

Missouri    Pac.    Ry.    Co.    v. 

Humes,  115  U.  S.  512,  523 

613,  622 
Missouri  Pacific  Ry.  Co.  v, 

Mackey,  127U.S.205..18, 

613,  624,  627,  652,  655,  724, 

796,  798,  810,  820, 823,  829, 

833,844 
Mitchell  V.  Glamorgan  Coal 

Co.   (1907),  23  T.   L.   R. 

588;  9  W.  C.  C.  16 400 

Mitchell  V.  Grant  &  Aldcroft 

(1905),  7W.  C.  C.  113....     64 
Mitchell  V.  WiUiams,  27  Ind. 

62 749 

M'Kee  v.  John  S.  Stein  &  Co. 

(1909),  47  Scotch  L.  R.  39; 

3B.  W.  C.  C.  544 210 

M'Lauchlan     v.     Anderson 


TABLE    OF   CASES   REPORTED   AND   CITED 


liii 


Page 
(1911),    48   Scotch    L.    R. 
349;  4  B.  W.  C.  C.  376  .. .   107 

M'Neice  v.  Singer  Sewing 
Machine  Co.  (1911),  48 
Scotch  L.  R.  15;  4  B.  W. 
C.  C.  351 106 

Mobile,  County  of,  v.  Kim- 
ball, 102  U.  S.  691 807 

Mobile,  etc.,  Ry.  v.  Bram- 
berg,  141  Ala.  258 800 

Mobile,  Jackson  &  Kansas 
City  Railroad  Co.  v.  Turn- 
ipseed,  219  U.  S. 35. . . .803,  844 

MoUoy  V.  South  Wales  An- 
thracite Colliery  Co., 
(1910),  4  B.  W.  C.  C.  65 

108,  110 

Mondou  V.  N.  Y.,  New  Haven 
&  Hartford  Railroad  Co., 
223  U.  S.  1 776 

Mondou  V.  N.  Y.,  New  Haven 
&  Hartford  R.  R.  Co.,  82 
Conn.  373 788,833 

Moore  v.  Crow's  Nest  Pass 
Coal  Co.  (1910),  15  Br.  C. 
R.  391;  4  B.  W.  C.  C.  451  399 

Moore  v.  Manchester  Liners 
(1908),  3  B.  W.  C.  C.  527; 
rev'g  1  K.  B.  417;  2  B.  W. 
C.  C.  87 72,84,  107 

Moore  v.  Moore,  47  N.  Y.  467  802 

Morgan  v.  William  Dixon 
(1910),  48  Scotch  L.  R. 
296;4B.  W.  C.  C.  363....  384 

Morgan  v.  Owners  of  S.  S. 
Zenaida  (1909),  25  T.  L.  R. 
446;  2  B.  W.  C.  C.  19 53 

Morris  v.  Lambeth  Borough 
Council  (1905),  8  W.  C.  C. 
1 90 

Morrison  v.  Clyde  Navigation 
Trustees  (1908),  46  Scotch 
L.  R.  38;  2  B.  W.  C.  C.  99    95 


Page 
Morter  v.  Great  Eastern  Ry. 

Co.  (1908),  2  B.  W.  C.  C. 

480 190 

Mortimer  v.  Secretan  (1909), 

100  L.  T.  721;  2  B.  W.  C. 

C.  446 399 

Moss  &  Co.  V.  Akers  (1911), 

4B.  W.  C.  C.  294 453 

Mountain  v.  Parr  (1899),  80 

L.  T.  342;  1  W.  C.  C.  10. .   408 
Mullen  v.  D.  Y.  Stewart  & 

Co.  (1908),  45  Scotch  L.  R. 

729;  1  B.  W.  C.  C.  204....   101 
Muller  v.  The  Batavia  Line 

(1909),  2  B.  W.  C.  C.  495. .  486 
Mulrooney  v.  Todd  &  Brad- 
ford   Corporation    (1908), 

100  L.  T.  99;  2  B.  W.  C.  C. 

191 178 

Munn  v.  Illinois,  94  U.  S.  113 

776,  818,  825,  828,  834,  841 
Murphy  v.   Berwick   (1909), 

43  Irish  L.  T.  126;  2  B.  W. 

C.  C.  103 96 

Murphy       v.       Enniscorthy 

Board  of  Guardians  (1908), 

42  Irish  L.  T.  246;  2  B.  W. 

C.  C.  291 121 

Murray  v.  Denholm  &  Co. 

(1911),  48  Scotch  L.  R.  896     49 
Murray  v.  So.  Car.  R.  R.  Co., 

1  McMuUan,  385 804 

Musco  v.  United  Surety  Co., 

196  N.  Y.  459 644 

Mutual    Accident    Assn.    v. 

Barry,  131  U.S.  100,  121;  9 

Sup.Ct.R.755;33L.Ed.60    48 
Mystic,  The,  44  Fed.  Rep.  399  811 

N 
Narramore  v,  Cleveland,  C. 
C.  &  St.  L.  Ry.  Co.,  96  Fed. 
Rep.  298 817,820 


liv 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 
Nashville,  etc.,  R.  R.  v.  Ala- 
bama, 128  U.  S.  96.  .824, 

825,  834,  838,  846 
Nashville,  etc.,  R.  R.  Co.  v. 

Carroll,  6  Heisk.  347 819 

National    Telephone    Co.    v. 

Smith  (1909),  46  Scotch  L. 

R.  988;  2  B.  W.  C.  C.  417. .  295 
Naylor  v.  Musgrave  Spinning 

Co.  (1911),  4  B.  W.  C.  C. 

286 95 

Nelson  v.  Belfast  Corporation 

(1908),  42  Irish  L.  T.  223;  1 

B.  W.  C.  C.  158 108,  109 

Neville  v.  Kelly  Bros.  &  Mit- 
chell (1907),  13  B.  C.  125; 

1  B.  W.  C.  C.  432 52 

New    Monckton    Colliers    v. 
Keeling  (1911),  4  B.  W.  C. 

C.  332 319 

Newton  v.  Atchison,  31  Kan. 

151;  1  Pac.  288;  47  Am. 

Rep.  486 750 

New  York,  N.  H.  &  H.  R.  R. 

Co.  V.  New  York,  165  U.  S. 

628 825 

New   York,    New   Haven   & 

Hartford  Railroad  Co.  v. 

Walsh 785,790 

Nicholson  v.  Piper  (1906),  96 

L.  T.  75;  9  W.  C.  C.  123; 

aff'd  (1907),  A.  C.  215;  97 

L.T.  119;9W.  C.  C.  128..  454 
Nisbet    V.    Rayne    &    Bum 

(1910),2K.B.689;3B.W. 

C.  C.  507 49,50 

New  Jersey  Steamboat  Co.  v. 

Brockett,  121  U.  S.  637. . .   805 
Noble  State  Bank  v.  Haskell, 

219  U.  S.  104;  31  Sup.  Ct. 

186;32L.R.A.(N.S.)1062 

643,  645,  648,  724,  770 
Noble  State  Bank   v.    Haa- 


Page 

kell,  22  Okla.  48;  97  Pac. 

590 724,  729 

Nolan    v.    Porter    &    Sons 

(1909),  2  B.  W.  C.  C.  106 

80,  81,  87 
Norfolk,    etc.,    Ry.    Co.    v. 

Pennsylvania,    136    U.    S. 

114 835 

Norman  &  Burt  v.   Walder 

(1904),  90  L.  T.  531;  6  W. 

C.  C.  124 483 

Norman  v.  Heist,  5  Watts.  & 

Serg.  171 618 

North  American  Life  &  Acci- 
dent Ins.  Co.  V.  Burroughs, 

69  Penn.  43 55 

Northern  Pacific  R.  R.  Co.  v. 

Babcock,    154   U.    S.    190 

789,  798 
Northern    Pac.    Ry.    Co.   v. 

Castle,  172  Fed.  Rep.  841 . .  819 
Northern  Pac.  R.  R.  Co.  v. 

Hambly,  154  U.  S.  349. . . .  804 
Northern  Pac.  R.  R.  Co.  v. 

Herbert,  116  U.  S.  642 804 

Northern  Pac.  R.  R.  Co.  v. 

Washington,  222  U.  S.  370  846 
Northern    Securities   Co.    v. 

United  States,   193  U.  S. 

197 827 

o 

O'Brien  v.  Star  Line  (1908), 

45  Scotch  L.  R.  935;  1  B. 

W.  C.  C.  177 85 

O'Donovan      v.      Cameron, 

Swan  &  Co.  (1901),  2  Irish 

R.  633 322 

Ofiield   v.   New  York,    New 

Haven  &  Hartford  R.  R. 

Co.,  203  U.  S.  372;  27  Sup. 

Ct.  72;51  L.Ed.  231 725 

O'Hara  v.  Hayes  (1910),  44 


TABLE    OF   CASES   REPORTED   AND   CITED 


Iv 


Page 
Irish  L.  T.  71;  3  B.  W.  C. 
C.  586 58 

Ohio  &  Mississippi  Ry.  Co.  v. 
Lackey,  78  III.  55 621 

Ohio  Oil  Co.  V.  Indiana,  177 
U.  S.  190;  20  Sup.  Ct.  576; 
44  L.  Ed.  729 725 

Oilure  Mfg.  Co.  v.  Pidduck- 
Ross  Co.,  38  Wash.  137;  80 
Pac.  276 750 

O'Keefe  v.  Lovatt  (1901),  4 
W.  C.  C.  109 208 

Old  Dominion  S.  S.  Co.  v. 
Gilmore,  207  U.  S.  398. . . .  805 

Olsen  V.  Smith,  195  U.  S.  332  815 

Omaha  &  R.  V.  R.  Co.  v. 
ChoUette,  33  Neb.  143;  49 
N.  W.  1114 722 

O'Neill  V.  The  Anglo-Ameri- 
can Oil  Co.  (1909),  2  B.  W. 
C.  C.  434 295 

O'Neill  V.  Ropner  &  Co.,  42 
Irish  L.  T.  3;  2  B.  W.  C.  C. 
334 475 

Opinion  of  the  Justices  of  the 
Mass.  Supreme  Judicial 
Court  on  the  Personal  In- 
juries Act  of  1911,  209 
Mass.  607;  96  N.  E.  308 

670,  776 

Ordway  v.  Central  Nat. 
Bank,  47  Md.  245 799 

Orient  Ins.  Co.  v.  Daggs,  172 
U.  S.  557 829 

Osband  v.  Tabor  (1912), 
"The  Policy  Holder," 
April  10,  1912,  p.  296 242 

Osborne  v.  Florida,  164  U.  S. 
650 825 

Osceola,  The,  189  U.  S.  158. .  638 

Owners  of  the  Steamship 
"Segura"  v.  Blampied 
(1911),  4B.  W.  C.  C.  192..   453 


Page 
Owners  of  Steamship  "Swan- 
sea Vale"  V.  Rice  (1911), 
104  L.  T.  658;  4  B.  W.  C.  C. 

298 402 

Owners  of  Vessel  "Tynron" 
V.  Morgan  (1909),  100  L.  T. 
461;2B.  W.  C.  C.  406....  486 

P 

Pacific    Navigation    Co.    v. 

Pugh  &  Son  (1907),  23  T. 

L.  R.  622;9  W.  C.  C.  39. .   351 
Pacific     Railroad     Removal 

Cases,  115  U.  S.  1 814 

Paddington  Borough  Coun- 
cil V.  Stack  (1909),  2  B.  W. 

C.  C.  402 386 

Page  V.  Burtwell  (1908),  1  B. 

W.  C.  C.  267 7 

Parrot  v.  Wells,  Fargo  &  Co., 

15  Wall.  524 620 

Paterson  v.  A.  G.  Moore  & 

Co.  (1910),  47  Scotch  L.  R. 

30;  3  B.  W.  C.  C.  541 484 

Patterson  v.  The  Eudora,  190 

U.  S. 169.805,  810,  811,  816,  838 
Patton  V.  T.  &  P.  Ry.  Co., 

179  U.  S.  658 805 

Payne  v.  N.  Y.,  Susquehanna 

&  W.  R.  Co.,  201  N.  Y.  436 

45,46 
Payne  and  another  v.  Clifton 

(1910),  3  B.  W.  C.  C.  439. .  452 
P.,  C.  C.  &  St.  L.  R.  R.  Co.  V. 

Lightheiser,  212  U.  S.  560  823 
Pearce  v.   London  &  South 

Western  Ry.  Co.  (1899),  2 

W.  C.  C.  152 90 

Pearce  v.   London  &  South 

Western  Ry.  Co.  (1900),  82 

L.  T.  487;  2  W.  C.  C.  47   .   107 
Peers  v.  Astley  &  Tyldesley 


Ivi 


TABLE   OP   CASES   REPORTED   AND   CITED 


Page 

Collieries  Co.  (1901),  3  W. 

C.  C.  185 249 

Peirce  v.  Van  Dusen,  78  Fed. 

Rep.  693 810,  838 

Penn     v.     Spiers     &     Pond 

(1908),  1  B.  W.  C.  C.  401 

249,  404 
Pennsylvania     v.     Wheeling 

Bridge  Co.,  13  How.  518.  .   816 
Pennsylvania  R.  R.  v.  Knight, 

192  U.  S.  21 826 

People    V.     Arensberg,     105 

N.  Y.  123 632 

People  ex  rel.  Schurz  v.  Cook, 

110  N.  Y.  443;  S.  C,  148 

U.  S.  397 649 

People  V.  Gates,  43  N.  Y.  40  802 
People  V.  Gillson,  109  N.  Y. 

389,  404 632 

People  V.  Hawkins,  157  N.  Y. 

1 632 

People  V.  Marcus,  185  N.  Y. 

257 633 

People  V.  Marx,  99  N.  Y.  377  632 
People  ex  rel.  Farrington  v. 

Mensching,    187  N.  Y.  8, 

16 631 

People  V.  O'Brien,  111  N.  Y. 

1 647 

People    V.    Orange    County 

Road  Con.  Co.,  175  N.  Y. 

84 632 

People  ex  rel.  Hatch  v.  Rear- 
don,  184  N.  Y.  431 613 

People  V.  Walker,  17  N.  Y. 

502 730 

People  V.  Welch,  141  N.  Y. 

273 800 

People  V.  Williams,  189  N.  Y. 

131,  134 633 

Perry  v.  The  Anglo-American 

Decorating  Co.    (1910),   3 

B.  W.  C.  C.  310 77 


Perry  v.  Clements  (1901),  3 

W.  C.  C.  56 360 

Perry  v.  Wright   (1907),  98 

L.  T.  327;  1  B.  W.  C.  C. 

351 244,251,252 

Peterson    v.    The    Chandos 

(D.  C),  4  Fed.  Rep.  645.  .  719 
Philadelphia,  B.  &  W.  R.  R. 

Co.  V.  Tucker,  35  App.  D. 

C.  123;  38  Washington  Law 

Reporter,  230 820 

Phillips  V.  State,  77  Ohio,  215  770 
Phillips  V.  Williams  (1911),  4 

B.  W.  C.  C.  143 109 

Pierce     v.     The     Provident 

Clothing    &    Supply    Co. 

(1911),  104  L.  T.  473;  4  B. 

W.  C.  C.  242 106 

Pierce  v.  Worcester  &  Nashua 

R.  R.  Co.,  105  Mass.  199. .  720 
Pimms  V.  Pearson  (1909),  2 

B.  W.  C.  C.  489 240 

Pittsburg   &    Southern   Coal 

Co.  V.  Bates,  156  U.  S.  577  810 
Pittsburg,   etc.,   Ry.   Co.   v. 

Ross,  212  U.  S.  560 834 

Plaquemines    Fruit    Co.    v. 

Henderson,  170  U.  S.  521 .  .  800 
Piatt  V.  Craig,  66  Ohio  St. 

75 783 

Plessy  V.  Ferguson,  163  U.  S. 

537 805 

Pollard    V.    Goole    &    Hull 

Steam  Towing  Co.  (1910), 

3B.  W.  C.  C.  360 181 

Pomfret     v.     Lancashire     & 
—Yorkshire  Ry.  Co.  (1903), 

89  L.  T.  000;  5  W.  C.  C.  22    80 
Pope  V.  Hill's  Plymouth  Co. 

(1910),  102  L.  T.  633;  3  B. 

W.  C.  C.  339 82 

Porton    V.    Central    (Unem- 
ployed) Body  for  London 


TABLE    OF   CASES   REPORTED   AND   CITED 


Ivii 


Page 

(1908),  102  L.  T.  102;  2  B. 

W.  C.  C.  296 120 

Powers  V.  Smith  (1910),  3  B. 

W.  C.  C.  470 61 

Price  V.  Bumyeat,  Brown  & 

Co.  (1907),  2  B.  W.  C.  C. 

337 276 

Price    V.    Marsden    &    Sons 

(1899),  SOL.  T.  15;1W.  C. 

C.  108 251 

Priestley  v.  Fowler,  3  Mees. 

&  W.  1 804 

Proctor  &  Sons  v.  Robinson 

(1909),  3  B.  W.  C.  C.  41 

476,  485 
Pryce  v.  Penrikyber  Naviga- 
tion Colliery  Co.  (1901),  85 

L.  T.  477;4W.  C.  C.  115..  324 
Pulliam  V.  Illinois  Central  R. 

R.  Co.,  75  Miss.  627 820 

Pullman  Co.  v.  Adams,  189 

U.  S.  420 825 

Purdy  V.  Erie  R.  R.  Co.,  162 

N.  Y.  42 649 

Purse  V.  Hay  ward  (1908),  1 

B.  W.  C.  C.  216 56 


Quackenbush  v.  Wis.  &  M. 

R.  R.  Co.,  62  Wis.  411....  622 
Quinn   v.   Flynn    (1910),   44 

Irish  L.  T.  R.  183;  3  B.  W. 

C.  C.  594 386 

Quinn  v.   M'Callum   (1908), 

46  Scotch  L.  R.  141;  2  B. 

W.  C.  C.  339 485 


Radcliffe  v.  The  Pacific 
Steam  Navigation  Co. 
(1910),  102  L.  T.  206;  3  B. 
W.  C.  C.  185 470 


Page 
Radcliflf's    Exrs.    v.    Mayor, 

etc.,  of  Brooklyn,  4  N.  Y. 

195 643 

Rahrer,  In  re,  140  U.  S.  545.  .  807 
Railroad  Co.  v.  Foxworth,  41 

Fla.  1 820 

Railroad  Co.  v.  Lockwood,  17 

Wall.  357 796 

Railroad  Co.  v.  Richmond,  19 

Wall.  584 830 

Railroad  Co.  v.  Stankard,  56 

Ohio  St.  232 780 

Railroad  Co.  v.  Stevens,  95 

U.  S.  655 796 

Railway  Co.  v.  Hasterman, 

72  Ohio  St.  107 783 

Raisler  v.  Oliver,  97  Alabama, 

710 799 

Rassmussen  v.  United  States, 

197  U.  S.  516 803 

Rayman    v.    Fields,    No.    2 

(1910),  102  L.  T.  154;  3  B. 

W.  C.  C.  123 452 

Reed  v.  Canfield,  Fed.  Cas. 

No.  11,641 719 

Reed  v.  Great  Western  Ry. 

Co.  (1908),  99  L.  T.  781;  2 

B.  W.  C.  C.  109 95 

Reed  v.  Smith,  Wilkinson  & 

Co.  (1910),  3  B.  W.  C.  C. 

223 180 

Reeks  v.   Kynoch   (1901),   4 

W.  C.  C.  15 126 

Rees  V.  Penrikyber  Naviga- 
tion ColUery  Co.  (1902),  87 

L.T.661;5W.C.C.  117..  321 
Rees  V.  Powell  Duffryn  Steam 

Coal  Co.  (1900),  4  W.  C.  C. 

17 126 

Rees  V.  Thomas  (1899),  80 

L.T.  578;1  W.  C.  C.  9....  99 
Refuge  Assurance  Co.  v.  Mil- 
lar, 49  Scotch  L.  R.  67. . . .   105 


Iviii 


TABLE    OF   CASES   REPORTED   AND    CITED 


Page 
Reid  V.  Colorado,  187  U.  S. 

137,  146 846 

Rennie   v.    Reid    (1908),    45 

Scotch  L.  R.  814;  1  B.  W. 

C.  C.  324 122 

Rex  V.  Crossley  (1909),  2  B. 

W.  C.  C.  451 531 

Rex  V.  Solomons  (1909),  2  K. 

B.  980 117 

Rhodes  v.  Soothill  Wood  Col- 
liery Co.  (1908),  100  L.  T. 

15;  2  B.  W.  C.  C.  377 407 

Riley  v.  W.  Holland  &  Sons 

(1911),  1  K.  B.  1029;  4  B. 

W.  C.  C.  155 108 

Rintoul  V.  Dalmeny  Oil  Co. 

(1908),    45   Scotch   L.    R. 

809;  1  B.  W.  C.  C.  340  .. .  209 
Roanoke,  The,  189  U.  S.  185  826 
Robb  V.  Connolly,  111  U.  S. 

624,  637 848 

Robbins    v.    Shelby    Taxing 

District,  120  U.  S.  489.807,  824 
Roberts  v.  Benham  (1910),  3 

B.  W.  C.  C.  430 406 

Roberts    v.    Crystal    Palace 

Football  Club  (1909),  3  B. 

W.  C.  C.  51 361 

Robertson  v.  Allan  Brothers 

&Co.  (1908),  98  L.T.  821; 

IB.  W.  C.  C.  172 85 

Robertson   v.    Baldwin,    165 

U.  S.  275.  . .  .639,  640,  800,  805 
Robertson  v.   Hall  Brothers 

Steamship    Co.    (1910),    3 

B.  W.  C.  C.  368 316 

Robinson  v.  Anon  (1904),  6 

W.  C.  C.  117 316 

Rodemacher  v.  Milwaukee  & 

St.  P.  R.  R.  Co.,  41   la. 

297;  20  Am.  Rep.  592  ....  720 
Rogers  v.  Cardiff  Corpora- 
tion, 8  W.  C.  C.  51 334 


Page 
Roles    V.    Pascall    &    Sons 

(1911),  104  L.  T.  298;  4  B. 

W.  C.  C.  148 363 

Roper  V.  Greenwood  (1900), 

83L.  T.  471;3W.  C.C.23 

48,  55,  57 
Rosenquist  v.  Bowring  &  Co. 

(1908),  98  L.  T.  773;  1  B. 

W.  C.  C.  395 247 

Rothwell  V.  Davies  (1903),  5 

W.  C.  C.  141 238 

Rowland  v.  Wright  (1908),  1 

B.  W.  C.  C.  192 103 

Ruabon  Coal  Co.  v.  Thomas 

(1909),3B.W.C.C.32...  475 
Rushworth  v.  Judges,  58  N.  J. 

L.  97 801 

s 

St.  John  V.  New  York,  201 

U.  S.  633 613 

St.   Louis,   etc.,   Ry.   Co.   v. 

Taylor,    210    U.    S.    281, 

799,  806,  811,  814,  815,  834 
St.  Louis  &  St.  F.  R.  R.  v. 

Delk,  158  Fed.  Rep.  931 . .  831 
St.  Louis  &  San  Francisco  R. 

R.   Co.   V.   Mathews,    165 

U.  S.  l;17Sup.  Ct.243;41 

L.Ed.  611 640,720 

St.  Louis,  I.  M.  &  S.  Ry.  Co. 

V.  Paul,  173  U.  S.  404...  823 
St.  Louis  Bridge  R.  R.  Co.  v. 

Callahan,  194  U.  S.  628.  . .  823 
San  Mateo  County  v.  So.  Pac. 

Ry.,  13  Fed.  Rep.  151.  ...  828 
Sapcote  &  Sons  v.  Hancock 

(1911),  4B.W.C.C.  184..  486 
Sapphire,  The,  18  Wall.  51 . .  819 
Savings  Society  v.   Coite,   6 

Wall.  606;  18  L.  Ed.  897. .  751 
Scarff  V.  Metcalf,  107  N.  Y. 

211 638,639 


TABLE    OP   CASES   REPORTED   AND   CITED 


lix 


Page 
Schenk  v.  Union  Pacific  Ry. 

Co.,  5  Wyo.  430 622 

Schintgen  v.  La  Crosse,  117 

Wis.  158;  94  N.  W.  84.  . . .  682 
Schlemmer  v.  Buffalo,  R.  & 

P.   Ry.  Co.,  205  U.  S.   1 

805-6,  810,  811,  815,  816, 

820,  821,  834,  835,  838 
Schnaier  v.  Navarre  Hotel  & 

I.  Co.,  182  N.  Y.  88 633 

Schofield    V.    Orrell   Colliery 

Co.  (1908),  100  L.  T.  104;  2 

B.  W.  C.  C.  301 320 

Schradin  v.  N.  Y.  C.  &  H. 

R.  R.  R.  Co.,  194  N.  Y. 
534 646 

Schuyler  Nat.  Bank  v.  Bol- 
long,  24  N.  W.  827 799 

Scotstoun  Estate  Co.  v.  Jack- 
son (1911),  48  Scotch  L.  R. 
440;  4  B.  W.  C.  C.  381 ... .   405 

Seattle  v.  Barto,  31  Wash. 
141;  71  Pac.  735 750 

Second  Employers'  Liability 
Cases,  223  U.  S.  1 45 

Senior  v.  Fountains  &  Burn- 
ley (1907),  23  T.  L.  R.  634; 
9  W.  C.  C.  116 318 

Sentell  v.  New  Orleans,  etc., 
Railroad  Co.,  166  U.  S. 
698;  17  Sup.  Ct.  693;  41  L. 
Ed.  1169 735 

Sewall  V.  Jones,  26  Mass.,  9 
Pick.  412 832 

Sharman  v.  HoUiday  &  Green- 
wood (1903),  90  L.  T.  46; 
6  W.  C.  C.  147 471 

Sharp  V.  Johnson  &  Co. 
(1905),  92  L.  T.  675;  7  W. 

C.  C.  28 75,77 

Sharpe  v.  Midland  Ry.  Co. 

(1903),  88  L.  T.  545;  5  W. 
C.  C.  128;  aff'd 247 


Page 
Shaw  V.  Railroad  Co.,   101 

U.  S.  557 832 

Shaw  V.  Wigan  Coal  &  Iron 

Co.  (1909),  3  B.  W.  C.  C. 

81 101 

Sheeran  v.  F.  &  J.  Clayton  & 

Co.  (1909),  44  Irish  L.  T. 

52;  3  B.  W.  C.  C.  583  ... .  54 
Sheldon  v.  Hudson  R.  R.  Co., 

14  N.  Y.  219 643 

Sherlock  v.  Ailing,  93  U.  S. 

99 805,835,838,846 

Sherman  v.   Bingham,   Fed. 

Cases,  No.  12,762 802 

Sherman  v.  Maine  Cent.  R. 

R.  Co.,  86  Me.  422;  30  Atl. 

69 720 

Shirt  V.  Calico  Printers'  As- 
sociation (1909),  2  K.  B. 

51;  2  B.  W.  C.  C.  342. .  .67,  212 
Shortall     v.     Puget     Sound 

Bridge  &  Dredging  Co.,  45 

Wash.  290;  88  Pac.  212; 

122  Am.  St.  Rep.  899 734 

Simmon  v.  The  Heath  Laun- 
dry Co.  (1910),  102  L.  T. 

210;3B.  W.  C.  C.  200...  249 
Simmons  v.  Faulds  (1901),  3 

W.  C.  C.  169 118 

Simmons     v.     White     Bros. 

(1899),  80  L.  T.  344;  1  W. 

C.  C.  89 315 

Simpson  v.  Ebbw-Vale  Steel, 

Iron  &  Coal  Co.  (1905),  92 

L.  T.  282;  7  W.  C.  C.  101.  119 
Singer  v.   Bedstead  Co.,  65 

N.  J.  Eq.293 799 

Sinking  Fund  Cases,  99  U.  S. 

718 828 

Sinnott  v.  Davenport  et  al., 

22  How.  242 797 

Skailes  v.  Blue  Anchor  Line 

(1910),  4B.  W.  C.  C.  16..  246 


Ix 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 
Skates  v.  Jones  &  Co.  (1910), 

3  B.  W.  C.  C.  460 177 

Smith  V.  Alabama,  124  U.  S. 

465,479 838,845,846 

Smith  V.  Baker,  App.  Cas. 

1891,  325 820 

Smith  V.  Boston  &  Maine  R. 

R.  Co.,  63  N.  H.  25 720 

Smith  V.  Coles  (1905),  93  L. 

T.  754;  8  W.  C.  C.  116  121,  334 
Smith  V.  Cord  Taton  Colliery 

Co.  (1900),  2  W.  C.  C.  121     51 
Smith  V.  Hughes  (1905),  8  W. 

C.  C.  115 474 

Smith  V.  Pearson  &  Shipley 

(1909),  2  B.  W.  C.  C.  468.  362 
Smith  V.  South  Normanton 

Colliery  Co.  (1903),   1  K. 

B.  204;  5  W.  C.  C.  14.  .79,  110 
Smith   and   another  v.   The 

Lancashire     &     Yorkshire 

Ry.  Co.  (1899),  79  L.  T. 

633;  1  W.  C.  C.  1 97 

Sneddon  and  others  v.  Green- 
field   Coal    &    Brick    Co. 

(1910),  47  Scotch  L.  R.  337; 

3  B.  W.  C.  C.  557 76 

Soon  Hing  v.  Crowley,   113 

U.  S.  703 613 

Southern    Railway    Co.    v. 

Reid,  222  U.  S.  424 846 

Southern     Railway     Co.     v. 

United  States,  222  U.  S.  20 

838,  842 
Southwestern     Oil     Co.     v. 

Texas,  217  U.  S.  114 830 

Spiers  v.  Elderslie  Steamship 

Co.  (1909),  46  Scotch  L.  R. 

893;  2  B.  W.  C.  C.  205  .. .   179 
Spraigue  v.  Thompson,   118 

U.  S.  90 814 

State  V.  Boone,  84  Ohio  St. 

346 776 


Page 
State  V.  Buchanan,  29  Wash. 

602;70Pac.  52;59L.  R.A. 

342;  92  Am.  St.  Rep.  930 

734,  738,  757 
State  V.  Cassidy,  22  Minn. 

312;  21  Am.  Rep.  765 745 

State  V.  Chicago,  M.  &  St. 

Paul  R.  Co.,  136  Wis.  407 .  .  833 
State  ex  rel.  v.  Chittenden, 

112  Wis.  569;   88   N.   W. 

587 677 

State  ex  rel.  Davis  Smith  Co. 

V.  Clausen,  117  Pac.  Rep. 

1101  (Wash.)  .  .  .  .667,  703,  776 
State  ex  rel.  Port  Townsend 

V.  Clausen,  40  Wash.  95; 

82  Pac.  187 705 

State  ex  rel.  Wallace  D.  Yaple 

V.  D.  S.  Creamer,  as  Treas- 
urer of  the  State  of  Ohio, 

00  Ohio  St.  00;  00  Cent. 

Rep.  00 764 

State  V.  Curtiss,  35  Conn.  374  801 
State  ex  rel.  Mullen  v.  Doher- 

ty,  16  Wash.  382;  47  Pac. 

958;  58  Am.  St.  Rep.  39. . .  763 
State  V.  Evans,  130  Wis.  381; 

HON.  W.  241 673 

State  V.  Frame,  39  Ohio  St. 

399 749 

State  V.  Guilbert,  56  Ohio  St. 

576 777,  780 

State  V.  Harmon,  31  Ohio  St. 

250 780 

State  V.  Hawkins,  44  Ohio  St. 

98 780 

State  ex  rel.  Cook  v.  Houser, 

122     Wis.     534-561;     100 

N.  W.  964 677 

State  v.  Hubbard,  22  C.  C. 

253;  aff'd,  65  Ohio  St.  574  777 
State,  etc.,  v.  Kreutzberg,  114 

Wis.  530;  90  N.  W.  1098; 


TABLE    OF   CASES   REPORTED   AND   CITED 


Ixi 


Page 
58  L.  R.  A.  748;  91  Am.  St. 
Rep.  934 694 

State  ex  rel.  Augusta  v.  Los- 
by,  115  Wis.  57;  90  N.  W. 
188 678 

State  ex  rel.  Olmstead  v. 
Mudgett,  21  Wash.  99;  57 
Pac.  351 705 

State,  etc.,  v.  Phelps,  144  Wis. 
1;128N.  W.  1041 699 

State,  etc.,  v.  R.  R.  Comm., 
137  Wis.  80;  117  N.  W.  846  699 

State,  etc.,  v.  Redmon,  134 
Wis.  89;  114  N.  W.  137;  14 
L.  R.  A.  (N.  S.)  229;  126 
Am.  St.  Rep.  1003 694 

State,  etc.,  v.  Ryan,  99  Wis. 
123;  74  N.  W.  544 699 

State  ex  rel.  v.  Trustees,  138 
Wis.  133;  119  N.W.  806;  20 
L.  R.  A.  (N.  S.)  1175 677 

State  ex  rel.  v.  Wharton,  117 
Wis.  558;  94  N.  W.  359. . .  677 

State  Tax  on  Foreign-held 
Bonds,  15  Wall.  300;  21  L. 
Ed.  179 751 

Statham  v.  Galloways  Limit- 
ed, 2  W.  C.  C.  149 98 

Stearns  v.  United  States,  2 
Paine,  300 802 

Steel  V.  Cammell,  Laird  & 
Co.  (1905),  7  W.  C.  C.  9..     67 

Steinkamp  v.  Cincinnati,  54 
Ohio  St.  295 783 

Steinweg  v.  Erie  Ry.  Co.,  43 
N.  Y.  123,  127 643 

Stephens,  Petitioner,  4  Gray, 
559 802 

Stephens  v.  Dunbridge  Iron- 
works Co.  (1904),  6  W.  C. 
C.  48 8 

Stewart  v.  Wilsons  &  Clyne 
Company  (1903),  5  F.  120    55 


Page 
Stoeckman  v.  T.  H.  &  R.  R. 

Co.,  15  Mo.  App.  503 798 

Strickley    v.    Highland    Boy 

Mining  Co.,  200  U.  S.  527; 

26  Sup.  Ct.  301;  50  L.  Ed. 

581 725 

Stroble   v.   Railroad,   70   la. 

555 831 

Stuart  V.  Hawley,  22  Barb. 

619 643 

Stuart    V.    Nixon    &    Bruce 

(1901),  3  W.  C.  C.  1 251 

Stull  V.  DeMattos,  23  Wash. 

71;62Pac.451;51L.  R.  A. 

892 750 

Sudell  V.  Blackburn  Corpora- 
tion (1910),  3  B.  W.  C.  C. 

227 119 

Suleman   v.   Owners   of   the 

"Ben  Lomond,"   (1909)  2 

B.  W.  C.  C.  499 280 

T 

Taff  Vale   Railway    Co.    v. 

Lane  (1910),  3  B.  W.  C.  C. 

297 484 

Tamworth    Colliery    Co.    v. 

Hall  (1911),  4  B.  W.  C.  C. 

313 318 

Taylor  v.  Jones  (1907),  1  B. 

W.  C.  C.  3 81 

Taylor  v.  Porter,  4  Hill.  140, 

145 618 

Taylor  v.  Southern  Railway, 

178  Fed.  Rep.  380 831 

Teal  V.  Felton,  12  How.  292 

799,800 
Telegraph  Co.  v.  James,  162 

U.  S.  650 825 

Thackway    v.    Connelly    & 

Sons  (1909),  3  B.  W.  C.  C. 

37 400 

Thomas  v.  Fairbaim,  Lawson 


Ixii 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

&Co.  (1911),  4B.  W.  C.  C. 

195 236 

Thomas  v.  Quartermaine,  18 

Q.  B.  D.  685 804,  820 

Thompson  v.  Ashington  Coal 

Co.    (1901),  3    W.    C.    C. 

21 69 

Thompson  v.  R.  W.  Gould  & 

Co.  (1910),  A.  C.  409;  103 

L.  T.  81;  3  B.  W.  C.  C.  392  397 
Thomson  v.  Flemington  Coal 

Co.  (1911),  48  Scotch  L.R. 

740;4B.  W.  C.  C.  406....     91 
Tibbs  V.  Watts,  Blake,  Bearne 

&  Ck).,  2  B.  W.  C.  C.  164 

361,  363 
Timmins  v.  Leeds  Forge  Co., 

16  T.  L.  R.  521 56 

Timmins  v.  Leeds  Forge  Co., 

2  W.  C.  C.  10 57 

Tomalin  v.  S.  Pearson  &  Son 

(1909),  100  L.  T.  685;  2  B. 

W.  C.  C.  1 45 

Trade  Mark  Cases,  100  U.  S. 

96 826 

Traynor  v.  Robert  Addie  & 

Sons  (1910),  48  Scotch  L. 

R.  820;  4  B.  W.  C.  C.  357 . .     92 
Trodden  v.  J.  McLennard  & 

Sons  (1911),  4  B.  W.  C.  C. 

190 88 

TuUis  V.  Lake  Erie,  etc.,  R. 

R.  Co.,  175  U.S.  348..  810, 

820,  823,  829,  834 
Turner  v.   Brooks  &  Doxey 

(1909),  3  B.  W.  C.  C.  22..  240 
Turner   v.    G.    Bell   &    Sons 

(1910),  4  B.W.  C.  C.  63..  453 
Turner  &  Others  v.  Miller  & 

Richards  (1910),  3  B.W.C. 

C.  305 316 

Tutton  V.  Owners  of  Steam- 
ship    "Majestic"     (1909), 


Page 
100  L.  T.  644;  2  B.  W.  C. 
C.  346 386 

u 

Union  Bridge  Co.  v.  United 

States,  204  U.  S.  364 816 

Union  Pacific  R.  R.  Co.  v. 

Rollin,  5  Kan.  167 819 

United  Collieries  v.  Hendry 

(1909),  101  L.  T.  129;  A.  C. 

(H.  L.)  383;  2  B.  W.  C.  C. 

308 322 

United    Collieries    v.     King 

(1909),  47  Scotch  L.  R.  41; 

3B.  W.  C.  C.  546 376 

United  States  v.  Barnes,  222 

U.  S.  513 848 

United  States  v.  Burlington, 

etc.,    Ferry   Co.,    21    Fed. 

Rep.  331,  340 833 

United  States  v.  Chicago,  etc. 

Ry.  Co.,  149  Fed.  Rep.  486, 

490 835 

United  States  v.  Col.  &  N.  W. 

R.  R.  Co.,  157  Fed.  Rep. 

321 833,835 

United  States  v.  Combs,  12 

Pet.  72 810,817 

United  States  v.  Delaware  & 

Hudson  Co.,  213  U.  S.  366 

796,  804,  815,  816,  823 
United    States    v.    Fisher,    2 

Cranch,  358 832 

United  States  v.  Illinois  Cent. 

R.  R.,  156  Fed.  Rep.  182, 

193 835 

United  States  v.  Knight,  156 

U.  S.  1 807,824,826 

United  States  v.  Lathrop,  17 

Johns.  (N.  Y.)  4,  8 801 

United    States    v.    Southern 

Ry.    Co.,    170   Fed.    Rep. 

1014 836 


TABLE    OF   CASES   REPORTED   AND    CITED 


Ixiii 


Page 

United  States  v.  Southern  Ry. 
Co.,  164  Fed.  Rep.  351 ... .  826 

United  States  v.  St.  Louis, 
etc.,  R.  Co.,  154  Fed.  516..  835 

United  States  v.  Wheeling, 
etc.,  R.  R.  Co.,  167  Fed. 
Jlep.  198 835 

United  States  v.  WiUiams, 
194U.  S.  295 801 

United  States  Mutual  Acci- 
dent Ins.  Ass'n  v.  Barry 
(1888),  131  U.  S.  100 55 

Upper  Forest  &  Western  Steel 
&  Tinplate  Co.  v.  Thomas 
(1909),2B.W.C.C.414..   471 

Upper  Forest  &  Worcester 
Steel  &  Tinplate  Co.  v. 
Grey  (1910),  3  B.  W.  C.  C. 
424 279 


V 

Valamio  v.  Thompson,  7  N. 

Y.  579 800 

Vamplew  &  Others  v.  Park- 
gate    Iron    &    Steel    Co. 

(1903),  88  L.  T.  756;  5  W. 

C.  C.  114 118 

Van  Horn  v.  People,  46  Mich. 

183;  9  N.  W.  246;  41  Am. 

Rep.  159 749 

Van  Slyke  v.  Insurance  Co., 

39  Wis.  390;  20  Am.  Rep. 

50 680 

Varesick  v.  British  Columbia 

Copper  Co.  (1906),  12  B.  C. 

286;  1  B.  W.  C.  C.  446....  321 
Villar  V.  Gilbey  (1907),  A.  C. 

139 320 

W 

Wabash  R.  R.  v.  Illinois,  118 
U.S.  557 824,835 


Page 
Wabash    R.    Co.    v.    United 

States,  168  Fed.  Rep.  1 .811,  835 
Wadsworth  v.  Union  Pacific 

Ry.  Co.,  18  Colo.  600 614 

Waites      v.      Franco-British 

Exhibition    (Incorporated) 

(1909),  2  B.  W.  C.  C.  199.  177 
Walla  Walla  v.   Ferdon,  21 

Wash.  308;  57  Pac.  796. .  .  750 
Walker    v.     Crystal    Palace 

Football  Club  (1909),  101 

L.T.645;3B.W.C.  C.  53.  120 
Walker  v.  Hockney  Brothers 

(1909),  2  B.  W.  C.  C.  20.  .  61 
Walker  v.  LilleshaU  Coal  Co. 

(1900),  81  L.  T.  769;  2  W. 

C.  C.  7 69 

Walker  v.  Mullins  (1908),  42 

Irish  L.  T.  168;  1  B.  W.  C. 

C.  211 102 

Walker  v.  Murrays  (1911),  48 

Scotch  L.  R.  741;  4  B.  W. 

C.  C.  409 56 

Walsh  V.   Hayes   (1909),   43 

Irish  L.  T.  114;  2  B.  W.  C. 

C.  202 180 

Walsh  V.  N.  Y.  &  N.  E.  R.  R. 

Co.,  160  Mass.  571. . .  .790,  798 
Walters  v.   Stavely   Coal  & 

Iron  Co.  (1911),  105  L.  T. 

119;4B.  W.  C.  C.  303....  73 
Warby   v.   Plaistowe  &   Co. 

(1910),  4B.  W.  C.  C.  67..  384 
Ward  V.  Jenkins,   10  Mete. 

588 798 

Ward   V.    London   &   North 

Western  Ry.  Co.  (1901),  3 

W.  C.  C.  192 280 

Ward  V.  Maryland,  12  Wall. 

418 824 

Ward  V.  MUes  (1911),  4  B.  W. 

C.  C.  182 278 

Wamcken  v.  Richard  More- 


Ixiv 


TABLE   OF   CASES   REPORTED   AND   CITED 


Page 

land    &    Son    (1908),    100 

L.  T.  12;  2  B.  W.  C.  C.  350  386 
Warner  v.  Couchman  (1911), 

IK.  B.  351;4B.  W.  C.  C. 

32 54 

Watson    V.     Nutterley    Co. 

(1902),  5  W.  C.  C.  51 132 

Watson  V.  Sherwood  (1909), 

2B.  W.  C.  C.  462 82 

Watson  V.  St.  Louis,  I.  M.  & 

S.  Ry.  Co.,  169  Fed.  Rep. 

942 810,813,832,833 

Webb  V.  R.  W.  &  O.  R.  R. 

Co.,  49  N.  Y.  420 643 

Weighill    V.    South    Heaton 

Coal  Co.  (1911),  4  B.  W. 

C.  C.  141 130 

Wells  V.  Cardiff  Steam  Col- 
lieries Co.  (1909),  3  B.  W. 

C.  C.  104 405 

Welton  V.  Missouri,  91  U.  S. 

280 800 

Western     Union     Telegraph 

Co.  V.  Commercial  Milling 

Co.,  218  U.  S.  406.  .776, 

805,  841 
Wharf,  Hays,  Proprietors  of, 

V.  Brown  (1909),  3  B.  W. 

C.  C.  84 385 

Whelan   v.   Great   Northern 

Steam  Fishing  Co.  (1909), 

100  L.  T.  912;  2  B.  W.  C. 

C.  235 114 

Whelan  v.  Moore  (1909),  43 

Irish  L.  T.  205;  2  B.  W.  C. 

C.  114 100 

Whelan  v.  Washington  Lum- 
ber Co.,  41  Wash.  153;  83 

Pac.  98;  111  Am.  St.  Rep. 

1006 734 

Whitbread  v.  Arnold  (1908), 

99  L.  T.  103;  1  B.  W.  C.  C. 

317 75 


Page 
White  V.  Sheepwash  (1910), 

3B.  W.  C.  C.  382 70 

White  &  Sons  v.  Harris  (1910), 

4B.  W.  C.  C.  39 239 

Whitehead  v.  Reader  (1901), 

3  W.  C.  C.  40 91 

Whitehead  v.  Reader  (1901), 

2  K.  B.  48 94 

Wilkes  (or  Wickes)  v.  Dowell 

&  Co.  (1905),  2  K.  B.  225; 

7.  W.  C.  C.  14 58 

Williams  v.  Duncan  (1908),  1 

W.  C.  C.  123 68 

Williams  v.  Fears,  179  U.  S. 

270 832 

Williams  v.  Ocean  Coal  Co. 

(1907),  97  L.  T.  150;  9  W. 

C.  C.  44 320 

Williams  v.  Vauxhall  Colliery 

Co.  (1907),  23T.  L.  R.591; 

9  W.  C.  C.  120 208 

Williams  v.  The  Wigan  Coal 

&  Iron  Co.  (1909),  3  B.  W. 

C.  C.  65 97 

Williams  v.   The  Wynnstay 

Colliers  (1910),  3  B.  W.  C. 

C.  473 253 

Willoughby  v.  Great  West- 
ern Ry.  Co.  (1904),  6  W.  C. 

C.  28 64 

Wilmington    Mining    Co.    v. 

Fulton,  205  U.  S.  60,  74. . .  834 
Wilson    V.    Kelly    &    Others 

(1909),  (Supreme  Court  of 

British  Columbia),  14  B.  C. 

437;3B.  W.  C.  C.  599...  551 
Wilson  V.  Laing  (1909),  46 

Scotch  L.  R.  843;  2  B.  W. 

C.  C.  118 100 

Wilson  V.  Southern  Ry.  Co., 

172  Fed.  Rep.  478 800 

Winfree  v.  Northern  Pac.  Ry. 

Co.,  173  Fed.  Rep.  65. . . .  833 


TABLE    OF   CASES   REPORTED   AND   CITED  IxV 

Page  Page 

Wisconsin   Industrial   School  lieries    (1910),    103    L.   T. 

for  Girls  v.  Clark  County,  170;  3  B.  W.  C.  C.  418  .. .     63 

103Wis.  651;79X.  W.  422  699  Yick    Wo    v.    Hopkins,    118 

Woodbury,    In   re,    98   Fed.  U.  S.  356;  6  Sup.  Ct.  1064; 

Rep.  833 802  30  L.  Ed.  220 737 

Wooden  v.  Western  N.  Y.,  «fe  Ystradowen  Colliery  Co.  v. 

P.  R.  Co.,  126  N.  Y.  10. . .     47  Griffiths  (1909),  100  L.  T. 

Wright  V.  Hart,   182  N.  Y.  869;  2  B.  W.  C.  C.  357. . . .     65 

330 626 

Wright  V.  Kerrigan  (1911),  45  ^ 

Irish  L.  T.  82;  4  B.  W.  C.  Zeigler  v.  S.  &  N.  Ala.  R.  R. 

C.  432 401  Co.,  58  Ala.  594 616,  622 

Wynehamer    v.    People,    13  Ziemer  v.  Crucible  Steel  Co., 

N.  Y.  378 618  99  App.  Div.  169;  90  Supp. 

962 45 

^  Zikos  V.  Oregon  R.  R.  &  Nav. 

Yates  V.  South  Kirby,  Feath-  Co.,    179    Fed.    893.  .813, 

erstone  &  Hemsworth  Col-  827,  831,  832,  833 


BRADBURY'S 

WORKMEN'S  COMPENSATION  AND 
STATE  INSURANCE  LAW 

CHAPTER  I 

ABOLITION  OF  DEFENSES;  ELECTION  OF  REMEDIES 

Page  Page 

Introduction 1  New  Hampshire 26 

California 8  New  Jersey 27 

Illinois 10  Ohio 30 

Kansas 13  Rhode  Island 33 

Massachusetts 17  Washington 34 

Michigan 22  Wisconsin 36 

Nevada 24 

INTRODUCTION 

1.  Abolition  of  defenses. 

In  paving  the  way  for  the  adoption  of  compensation 
acts  the  first  thing  necessary  to  be  done  was  to  abolish 
the  defenses  of  assumption  of  risk  and  negligence  of 
fellow  servant,  and  to  either  abolish  entirely,  or  to 
modify  greatly,  the  defense  of  contributory  negligence. 
This  has  been  done  chiefly  to  compel  employers  to  ac- 
cept the  compensation  principle.^    After  the  decision  of 

1  It  is  true  that  all  three  of  these  defenses  had  been  greatly  modi- 
fied in  several  States,  and  one  or  more  of  them  had  been  abolished 
entirely  in  some  jurisdictions  prior  to  the  enactment  of  compensa- 
tion statutes.    But  it  was  not  until  the  compensation  feature  was 

1 


2       Bradbury's  workmen's  compensation  law 

Introduction 

the  New  York  Court  of  Appeals  in  the  case  of  Ives  v. 
South  Buffalo  Ry.  Co.,  201  N.  Y.  271,^  that  a  mandatory 
compensation  law  was  unconstitutional,  the  other  States 
passed  optional  statutes.  Then,  to  induce  employers 
to  come  under  the  statutes,  provision  was  made  that 
their  common-law  defenses  were  eliminated  unless  they 
did  adopt  the  compensation  principle.  Against  em- 
ployes, however,  who  refuse  to  follow  their  employers 
in  accepting  the  compensation  principle  the  common- 
law  defenses  are,  in  some  of  the  statutes,  revived  in 
favor  of  their  employers. 

The  method  has  been  to  abolish  the  first  two  en- 
tirely. As  to  contributory  negligence,  some  of  the  acts 
go  so  far  as  to  abolish  absolutely  that  defense  also. 
But  most  of  the  statutes  make  the  willful  negligence, 
or  the  willful  act  of  the  servant,  sufficient  ground  for 
denying  to  him  the  right  of  compensation,  or  even 
damages,  whenever  the  common-law  right  of  action  is 
retained  at  all. 

Several  of  the  acts  provide  that  when  the  injury  is 
caused  by  intoxication  the  employe  shall  not  receive 
compensation.  Others  modify  these  provisions  slightly, 
but  the  general  trend  of  the  various  acts  is  as  given 
above. 

The  net  result  has  been  an  entire  shifting  of  the  bur- 
den of  proof  under  the  compensation  feature  of  the 
statutes.    Formerly  the  employ^  was  compelled  to  show 

introduced  as  an  alternative  whereby  some  limit  could  be  placed 
on  the  amount  of  the  recovery  that  the  lawmakers  generally 
deemed  it  the  part  of  wisdom  to  abolish  entirely  the  fellow-servant 
and  assumption-of-risk  rules  and  to  modify  almost  to  the  point 
of  abolition  the  defense  of  contributory  negligence. 
'  This  decision  is  printed  in  full  in  Chapter  XXXVIII. 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES      3 
Introduction 

negligence  on  the  part  of  the  master  as  the  foundation 
of  his  action,  and  in  many  jurisdictions,  until  recently, 
that  he,  the  employ^,  was  free  from  contributory  neg- 
ligence. 

Later,  in  many  jurisdictions  (and  in  some  jurisdic- 
tions at  all  times)  the  master,  as  a  defense,  was  com- 
pelled to  show  affirmatively  that  the  servant's  injury 
was  caused  by  the  servant's  own  negligence. 

The  compensation  acts  abolished  all  these  burdens  of 
proof  by  starting  with  the  assumption,  in  all  cases, 
that  neither  party  was  guilty  of  negligence — that  the  injury 
was  the  inevitable  result  of  the  occupation  in  which  the 
employe  was  engaged.  Then  the  law  said  to  the  master : 
''If  you  would  escape  this  presumption  you  must  show 
more  than  common  negligence  on  the  part  of  the  serv- 
ant; you  must  show  that  the  injury  to  the  servant  was 
the  result  of  a  willful  act  or  of  his  intoxication."  It 
also  said  to  the  servant:  ''You  must  bear  a  part  of  this 
inevitable  loss  by  accepting  less  than  you  could  have 
earned  if  the  accident  had  not  happened,  unless  you 
can  show  that  the  master  was  guilty  of  something  more 
than  ordinary  negligence.  If  you  can  prove  that  the 
master  disregarded  regulations  prescribed  by  law  re- 
lating to  safeguards,  or  was  willfully  or  grossly  negli- 
gent, you  may  recover,  not  compensation  merely,  but 
also  damages  because  of  your  suffering." 

This  subject  is  discussed  under  the  particular  pro- 
visions of  the  statute  of  each  State. 

2.  Election  of  remedies.^ 
There  is  more  variety  in  the  various  compensation 

^  Of  course  there  is  a  clear  distinction  between  an  election  of 
remedies  by  an  employe  after  an  accident  has  happened,  and  the 


4      Bradbury's  workmen's  compensation  law 

Introduction 

acts  on  the  question  of  election  of  remedies  than  there 
is  on  the  topic  of  abolition  of  defenses.  Some  of  the 
statutes  give  the  employ^  an  absolute  right  after  an 
accident  has  happened  to  determine  whether  he  will 
demand  ''damages"  or  "compensation."  A  few  of  the 
laws  give  him  a  right  to  pursue  both  remedies  at  once; 
but  in  such  cases  an  actual  recovery  under  one  form  of 
action  precludes  further  proceedings  in  the  other.  ^  In 
several  of  the  acts  "damages"  may  be  recovered  in 
cases  where  an  employer  is  guilty  of  a  violation  of 
some  specific  statute  and  the  injury  is  caused  thereby. 
Some  of  them  go  so  far  as  to  permit  the  recovery  of 
"double  damages"  or  "double  compensation,"  when 
the  injury  is  caused  by  a  disregard  of  a  statute  relating 
to  safety  devices.  A  considerable  number  of  the  laws, 
however,  provide  that  where  the  employer  has  brought 
himself  within  the  terms  of  the  statute  and  the  em- 
ploy^  has  not  expressed  his  election  not  to  be  bound  by 

election  which  both  the  employer  and  the  employ^  may  exercise  as 
to  whether  they,  or  either  of  them,  will  come  within  the  provisions 
of  the  compensation  features  of  the  statute  in  any  event.  The 
latter  subject  naturally  comes  under  the  topic:  To  Whom  the  Act 
Applies,  which  is  discussed  in  Chapter  II,  post,  page  39.  In  the 
text  of  the  present  chapter  is  considered  merely  the  election  which 
the  employ^  may  make  after  the  accident,  presuming,  of  course, 
that  both  employer  and  employ^  have  signified  their  intentions,  in 
proper  legal  form,  to  accept  and  be  bound  by  the  features  of  a  par- 
ticular statute  relating  to  compensation. 

1  It  is  not  clear  whether  it  is  intended  that  the  employ^  may  de- 
mand both  "damages"  and  "compensation"  in  one  action,  and 
recover  whichever  the  facts  proved  show  he  is  entitled  to  receive, 
or  whether  he  must  bring  two  actions.  The  solution  of  this  question 
doubtless  depends  on  the  practice,  as  to  joinder  of  causes  of  action 
in  one  complaint  or  declaration,  in  the  particular  jurisdiction  where 
the  claim  is  made. 


ABOLITION   OF  DEFENSES;   ELECTION   OF  REMEDIES      5 
Introduction 

the  law,  that  the  right  to  "compensation"  shall  be 
exclusive  of  all  other  rights  for  remuneration  because 
of  injuries. 

The  constitutional  question  of  the  right  of  the  legis- 
lature to  compel  the  employe  to  accept  and  the  em- 
ployer to  pay  compensation  for  all  injuries,  irrespective 
of  negUgence,  has  had  an  important  bearing  on  this 
subject.  Since  the  decision  of  the  New  York  Court  of 
Appeals  in  the  case  of  Ives  v.  South  Buffalo  Ry.  Co.,  201 
N.  Y.  271,  it  has  been  feared  that  the  power  of  the 
legislature  to  absolutely  compel  an  employer  to  pay 
or  an  employe  to  accept  compensation  for  an  injury 
in  all  cases,  was  doubtful,  at  least.  Some  of  the  law- 
makers, therefore,  have  been  rather  disincUned  to 
abolish  the  right  to  sue  for  "damages"  and  have  so 
worded  the  statutes  as  to  leave  it  to  the  employer  and 
employe  to  elect  to  pay,  or  to  accept,  compensation, 
upon  failure  of  either  to  take  some  affirmative  action  in- 
dicating a  rejection  of  the  principle.  Then  to  still  fur- 
ther escape  the  constitutional  problem,  or  out  of  a  feel- 
ing of  tenderness  for  the  employe,  the  legislators,  in 
some  instances,  have  still  further  permitted  the  work- 
man to  elect,  by  allowing  him  to  demand  both  "dam- 
ages" and  "compensation,"  but  limiting  the  recovery  to 
one  or  the  other.  In  some  instances  a  workman  while 
employed  in  his  master's  business  is  injured  through  the 
wrong  of  a  third  party.  Suppose,  for  example,  a  driver 
of  A's  team  is  injured  by  the  negligence  of  B,  who  is 
operating  an  automobile.  The  driver  could  recover 
compensation  from  A.  He  would  also  have  a  cause  of 
action  against  B,  for  damages.  Usually,  under  the 
various  statutes,  he  may  elect  which  remedy  to  pursue. 
Generally  speaking  the  employ^  can  only  have  one 


6         BRADBURY  S   WORKMEN  S   COMPENSATION   LAW 
Introduction 

recovery  of  damages  or  compensation,  for  a  single  in- 
jury. But  under  a  set  of  circumstances  such  as  de- 
scribed above,  where  the  employe  recovers  compensa- 
tion from  his  employer,  the  latter  is  subrogated  to  the 
rights  of  the  workman  as  against  the  third  person  who 
caused  the  injury. 

Of  course  it  is  a  well-recognized  general  rule  of 
law  that  where  two  or  more  remedies  are  open  to  a 
person  to  right  a  particular  wrong,  that  pursuit  of  one 
constitutes  such  an  election  as  will  preclude  the  person 
from  subsequently  pursuing  the  other.  The  same  rule 
applies  generally  to  compensation  laws,  in  the  absence 
of  special  statutory  regulation.  By  the  terms  of  the 
British  Compensation  Act  if  a  workman  sues  at  com- 
mon law  and  is  defeated  he  can  ask  the  court  to 
immediately  assess  compensation.  Apart  from  this 
special  provision  the  doctrine  of  estoppel  by  election 
applies.  Thus  where  a  claim  for  compensation  was 
refused  by  the  arbitrator  under  the  Compensation  Act 
of  1897,  it  was  held  that  this  was  a  bar  to  a  subsequent 
action  at  common  law  by  the  workman  for  damages  for 
personal  injuries  sustained  in  the  accident.  Burton  v. 
Chapel  Coal  Company  (1909),  46  Scotch  L.  R.  375;  2 
B.  W.  C.  C.  120.  Where  a  workman  has  recovered 
compensation  from  his  employers,  he  is  not  entitled  to 
maintain  an  action  against  a  person  other  than  the 
employer,  the  negligence  of  whose  servant  has  caused 
the  injury  for  which  complaint  is  made,  even  though 
the  workman  would  be  entitled  to  more  by  way  of  dam- 
ages than  he  had  received  by  way  of  compensation. 
Mahomed  v.  Maunsell  (1907),  1  B.  W.  C.  C.  269.  Where 
a  workman  who  had  received  injury  on  the  premises  of 
a  person  other  than  those  of  his  employer  and  entered 


ABOLITION    OF   DEFENSES;   ELECTION   OF   REMEDIES      7 
Introduction 

into  an  agreement  with  the  owner  of  the  premises  to 
satisfy  any  claim  he  had  against  them,  in  consideration 
of  such  person  paying  his  wages  during  incapacity  for  a 
period  not  to  exceed  six  months,  together  with  his 
doctor's  bill,  it  was  held  that  this  was  a  recovery  of 
damages  which  precluded  the  workman  from  claiming 
compensation  from  his  employer,  as  the  recovery  of 
such  damages  need  not  necessarily  be  by  legal  pro- 
ceedings. Page  v.  Burtwell  (1908),  1  B.  W.  C.  C.  267. 
A  workman  employed  by  contractors  was  knocked 
down  and  injured  by  a  London  County  Council  tram- 
car.  He  received  payments  from  his  employers  and 
signed  receipts  which  stated  that  the  money  was  paid 
as  compensation  under  the  act.  Subsequently  he  re- 
paid these  moneys  and  commenced  an  action  against 
the  London  County  Council.  He  then  said  that  he  had 
not  read  or  understood  the  papers  which  he  had  signed. 
The  County  Court  judge  nonsuited  the  workman  on 
the  ground  that  he  was  estopped  by  the  receipts.  It 
was  held  on  appeal  in  the  King's  Bench  Division  that 
while  prima  facie  the  man  was  bound  by  the  receipt 
signed,  his  real  intention  in  signing  must  be  considered. 
If  he  did  not  read  or  understand  the  document  there 
might  not  be  an  estoppel.  It  was  held  that  the  case 
should  have  been  left  to  the  jury  for  the  determination 
of  the  question  of  fact  whether  the  man  understood  the 
nature  and  effect  of  the  receipts  when  he  signed  them. 
Huckle  V.  The  London  County  Council  (1910),  3  B.  W. 
C.  C.  536.  An  option  to  accept  compensation  under 
the  act,  instead  of  damages,  exercised  on  behalf  of  an  in- 
fant, will  be  set  aside  if  it  be  not  for  the  infant's  benefit. 
Ford  V.  Wren  &  Dunham  (1903),  5  W.  C.  C.  48.  An 
option  exercised  by  a  person  on  behalf  of  an  infant  is 


8      Bradbury's  workmen's  compensation  law 

California 

not  binding  on  the  infant  unless  it  be  for  his  benefit. 
Stephens  v.  Dunbridge  Ironworks  Co.  (1904),  6  W.  C.  C. 
48.  In  the  last-mentioned  case  relatives  of  the  infant 
had  made  claim  for  compensation  and  this  was  paid  to 
the  infant,  who  signed  a  release  in  full.  It  was  held 
that  this  did  not  debar  the  infant  from  maintaining  a 
common-law  action  for  damages. 

In  the  pages  which  follow,  the  texts  of  the  various 
statutes  in  the  different  States  have  been  reprinted, 
with  such  elucidations,  cross  references  and  explana- 
tions as  have  been  deemed  necessary  to  give  a  clear 
understanding  of  the  statutory  provisions  on  this  sub- 
ject in  each  commonwealth. 


CALIFORNIA 

(L.  1911,  c.  399) 

1.  Abolition  of  defenses. 

"§  1.  In  any  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  State  by  an  employ 6 
while  engaged  in  the  line  of  his  duty  or  the  course 
of  his  employment  as  such,  or  for  death  resulting  from 
personal  injury  so  sustained,  in  which  recovery  is 
sought  upon  the  ground  of  want  of  ordinary  or  rea- 
sonable care  of  the  employer,  or  of  any  officer,  agent 
or  servant  of  the  employer,  the  fact  that  such  employ^ 
may  have  been  guilty  of  contributory  negligence  shall 
not  bar  a  recovery  therein  where  his  contributory 
negligence  was  slight  and  that  of  the  employer  was 
gross,  in  comparison,  but  the  damages  may  be  dimin- 
ished by  the  jury  in  proportion  to  the  amount  of 
negligence  attributable  to  such  employ^,  and  it  shall 
be  conclusively  presumed  that  such  employ^  was  not 


ABOLITION   OF   DEFENSES)   ELECTION   OF   EEMEDIES      9 
California 

guilty  of  contributory  negligence  in  any  case  where 
the  violation  of  any  statute  enacted  for  the  safety  of 
employes  contributed  to  such  employe's  injury;  and 
it  shall  not  be  a  defense : 

"(1)  That  the  employ^  either  expressly  or  im- 
pliedly assumed  the  risk  of  the  hazard  complained 
of. 

"(2)  That  the  injury  or  death  was  caused  in 
whole  or  in  part  by  the  want  of  ordinary  or  reason- 
able care  of  a  fellow  servant. 
"  §  2.  No  contract,  rule  or  regulation,  shall  exempt 
the  employer  from  any  of  the  provisions  of  the  pre- 
ceding section  of  this  act." 


2.  Election  of  remedies. 

The  California  Act  gives  an  elective  remedy  to  a 
restricted  extent  only.  The  claim  for  ' '  compensation," 
as  distinguished  from  ''damages,"  is  the  exclusive 
remedy  of  an  employ^  whose  employer  has  brought 
himself  within  the  terms  of  the  act,  ''except  that  where 
the  injury  was  caused  by  the  personal  gross  negligence 
or  willful  misconduct  of  the  employer,  or  by  reason  of 
his  violation  of  any  statute  designed  for  the  protection 
of  employes  from  bodily  injury,  the  employ^  may,  at 
his  option,  either  claim  compensation  under  the  act,  or 
maintain  an  action  for  damages  therefor."  See  §  3  (3), 
last  paragraph,  in  Chapter  II,  post,  page  132. 

Also,  if  the  accident  happens  under  circumstances 
which  make  the  Act  inapplicable,  the  employ^  may 
pursue  the  common-law  remedy  with  the  ordinary 
common-law  defenses  eliminated.  See  §  3  (3)  of  the 
act,  last  sentence,  in  Chapter  II,  post,  page  133,  in  con- 
nection with  §  1  of  the  Act,  in  this  chapter. 


10    Bradbury's  workmen's  compensation  law 

Illinois 

ILLINOIS 

(L.  1911,  c.  000) 

1.  Abolition  of  defenses. 

"§  1.  Be  it  enacted  by  the  people  of  the  State  of  Illi- 
nois, represented  in  the  General  Assembly:  That  any 
employer  covered  by  the  provisions  of  this  Act  in 
this  State  may  elect  to  provide  and  pay  compensation 
for  injuries  sustained  by  any  employe  arising  out  of 
and  in  the  course  of  the  employment  according  to 
the  provisions  of  this  Act,  and  thereby  relieve  him- 
self from  liability  for  the  recovery  of  damages,  ex- 
cept as  herein  provided.  If,  however,  any  such 
employer  shall  elect  not  to  provide  and  pay  the  com- 
pensation to  any  employ^  who  has  elected  to  accept 
the  provisions  of  this  Act,  according  to  the  pro- 
visions of  this  Act  he  shall  not  escape  liability  for 
injuries  sustained  by  such  employ^  arising  out  of 
and  in  the  course  of  his  employment  because 

"1.  The  employ 6  assumed  the  risks  of  the  em- 
ployer's business. 

"2.  The  injury  or  death  was  caused  in  whole  or 
in  part  by  the  negligence  of  a  fellow  servant. 

"3.  The  injury  or  death  was  proximately  caused 
by  the  contributory  negligence  of  the  employ^,  but 
such  contributory  negligence  shall  be  considered  by 
the  jury  in  reducing  the  amount  of  damages." 

Under  a  strict  interpretation  of  the  Illinois  Act  it 
has  been  argued  that  there  might  possibly  be  one  con- 
tingency in  which  the  common-law  defenses  of  the 
employer  would  not  be  abolished,  even  though  the 
employer  should  elect  not  to  adopt  the  compensation 
principle.  In  the  first  paragraph  of  §  1,  above,  it  is 
provided  that  if  ''any  such  employer  shall  elect  not  to 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       11 

Illinois 

provide  and  pay  the  compensation  to  any  employe  who 
has  elected  to  accept  the  provisions  of  this  Act,  according 
to  the  provisions  of  the  Act  he  shall  not  escape  lia- 
bility," etc.  As  already  pointed  out  the  employer  has 
the  first  and  basic  election  as  to  whether  or  not  he  will 
accept  the  compensation  doctrine.  If  the  employer 
should  elect  not  to  accept  the  compensation  principle 
his  employes  would  be  powerless  to  bring  either  their 
employer  or  themselves  under  the  new  law.  In  such  a 
case,  therefore,  the  employes  would,  in  practical  effect, 
have  no  election  whatever.  As  a  practical  matter, 
therefore,  the  employes  cannot  elect  ''to  accept  the 
provisions  of  the  Act,"  as  to  an  employer  who  has  al- 
ready elected  not  to  accept  such  provisions.  At  least 
such  election  by  an  employe  under  the  circumstances 
cited  would  have  no  practical  effect,  unless  it  would  be 
the  abolition  of  the  common-law  defenses  of  the  employer. 
The  author  is  of  the  opinion  that  it  must  be  assumed 
that  the  legislature  had  this  condition  of  affairs  in 
mind  when  it  passed  the  Act  and  did  not  do  a  vain 
thing  in  adopting  the  language  quoted.  The  legisla- 
ture of  course  knew  that  it  had  given  to  the  employer 
the  first  election.  It  knew  that  unless  an  employer 
elected  to  adopt  the  compensation  principle  the  em- 
ployes of  such  employer  could  not  recover  compensa- 
tion, whatever  they  might  do.  When,  therefore,  the 
legislature  under  these  circumstances  said  that  if  the 
employer  should  not  elect  to  pay  compensation  and  the 
employes  of  such  employer  should  nevertheless  ''elect" 
to  adopt  the  compensation  principle,  it  seems  clear 
that  the  legislature  intended  to  abolish  the  common- 
law  defenses  of  an  employer  who  refused  to  pay  com- 
pensation as  to  all  employes  who  offered  to  be  bound 


12    Bradbury's  workmen's  compensation  law 

Illinois 

by  the  provisions  of  the  new  law  by  expressing  their 
election  to  adopt  the  compensation  principle.  Few 
would  have  the  hardihood  to  argue  that  the  legisla- 
ture did  not  intend  to  bring  about  this  result.  It  does 
no  violence  to  the  language  of  the  Act  to  assert  that 
this  meaning  can  easily  be  spelled  out  of  the  words 
which  are  therein  found. 

2.  Election  of  remedies. 

The  Illinois  Act  makes  the  right  to  "compensation" 
exclusive  in  cases  to  which  it  applies.  If  an  employer 
does  not  bring  himself  within  the  provisions  of  the  act 
then  the  common-law  defenses  are  eliminated  as  to 
him.     See  §  1,  above. 

Furthermore,  if  the  injury  is  caused  by  the  "inten- 
tional omission  of  the  employer  to  comply  with  statu- 
tory safety  regulations,  nothing  in  the  act  shall  affect 
the  civil  liability  of  the  employer."    See  §  3,  below. 

"  §  3.  No  common-law  or  statutory  right  to  re- 
cover damages  for  injury  or  death  sustained  by  any 
employ^  while  engaged  in  the  line  of  his  duty  as  such 
employ^  other  than  the  compensation  herein  provided 
shall  be  available  to  any  employ^  who  has  accepted 
the  provisions  of  this  Act  or  to  any  one  wholly  or 
partially  dependent  upon  him  or  legally  responsible 
for  his  estate:  Provided,  that  when  the  injury  to 
the  employ^  was  caused  by  the  intentional  omission 
of  the  employer,  to  comply  with  statutory  safety 
regulations,  nothing  in  this  Act  shall  affect  the  civil 
liability  of  the  employer.  If  the  employer  is  a  part- 
•  nership,  such  omission  must  be  that  of  one  of  the 
partners  thereof,  and  if  a  corporation,  that  of  any 
elective  officer  thereof." 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       13 

Kansas 

If  the  employe  has  a  right  to  recover  either  ''dam- 
ages" or  ''compensation"  he  may  take  proceedings  to 
recover  both,  but  a  recovery  under  one  remedy  ex- 
hausts his  rights.  §§  17  and  18.  See  Chapter  XX, 
post.     See  also  §  233^. 

KANSAS 

(L.  1911,  c.  218) 

1.  Abolition  of  defenses. 

"  §  46.  In  any  action  to  recover  damages  for  a 
personal  injury  sustained  within  this  State  by  an  em- 
ploy6  (entitled  to  come  within  the  provisions  of  this 
act)  while  engaged  in  the  line  of  his  duty  as  such  or  for 
death  resulting  from  personal  injury  so  sustained,  in 
which  recovery  is  sought  upon  the  ground  of  want  of 
due  care  of  the  employer  or  of  any  officer,  agent  or 
servant  of  the  employer,  where  such  employer  is 
within  the  provisions  hereof,  it  shall  not  be  a  defense 
to  any  employer  (as  herein  in  this  act  defined)  who 
shall  not  have  elected,  as  hereinbefore  provided,  to 
come  within  the  provisions  of  this  act:  (a)  That  the 
employe  either  expressly  or  impliedly  assumed  the 
risk  of  the  hazard  complained  of:  (b)  that  the  injury  or 
death  was  caused  in  whole  or  in  part  by  the  want  of 
due  care  of  a  fellow  servant;  (c)  that  such  employ^ 
was  guilty  of  contributory  negligence  but  such  con- 
tributory negligence  of  said  employe  shall  be  consid- 
ered by  the  jury  in  assessing  the  amount  of  recovery. 

"§  47.  In  an  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  State  by  an  employe 
(entitled  to  come  within  the  provisions  of  this  act) 
while  engaged  in  the  line  of  his  duty  as  such  or  for 
death  resulting  from  personal  injury  so  sustained  in 
which  recovery  is  sought  upon  the  ground  of  want  of 
due  care  of  the  employer  or  of  any  officer,  agent  or 


14     Bradbury's  workmen's  compensation  law 

Kansas 

servant  of  the  employer,  and  where  such  employer  has 
elected  to  come  and  is  within  the  provisions  of  this 
act  as  hereinbefore  provided,  it  shall  be  a  defense  for 
such  employer  in  all  cases  where  said  employe  has 
elected  not  to  come  within  the  provisions  of  this  act; 
(a)  That  the  employ^  either  expressly  or  impliedly 
assumed  the  risk  of  the  hazard  complained  of;  (6)  that 
the  injury  or  death  was  caused  in  whole  or  in  part  by 
the  want  of  due  care  of  a  fellow  servant;  (c)  that  said 
employe  was  guilty  of  contributory  negligence;  pro- 
vided, however,  that  none  of  these  defenses  shall  be 
available  where  the  injury  was  caused  by  the  willful 
or  gross  negligence  of  such  employer,  or  of  any  man- 
aging officer,  or  managing  agent  of  said  employer,  or 
where  under  the  law  existing  at  the  time  of  the  death 
or  injury  such  defenses  are  not  available." 

As  to  any  employer  who  might  bring  himself  within 
the  terms  of  the  Compensation  Act  and  fails  to  do  so, 
the  common-law  defenses  founded  on  the  assmnption- 
of-risk  and  the  fellow-servant  doctrines  are  entirely 
eliminated.  In  such  a  case  contributory  negUgence  is 
not  a  complete  defense  in  any  case,  but  may  be  con- 
sidered by  the  jury  in  the  assessment  of  damages. 

If  the  employer  brings  himself  within  the  terms  of 
the  act  and  the  employe  refuses  to  be  bound  by  the 
act,  then  all  the  common-law  defenses  are  available  to 
the  employer,  except  in  cases  of  willful  or  gross  negli- 
gence on  the  part  of  the  employer,  or  any  managing 
officer  or  managing  agent  thereof,  ''or  where  under  the 
law  existing  at  the  time  of  death  or  injury  such  de- 
fenses are  not  available." 

The  foregoing  provision  of  §  47  that  even  where  the 
employer  has  elected  to  come  within  the  provisions  of 


ABOLITION   OF   DEFENSES;   ELECTION    OF   REMEDIES       15 

Kansas 

the  Compensation  Act  and  the  employ^  has  refused  to 
do  SO,  the  employer  may  still  be  precluded  from  setting 
up  the  common-law  defenses,  when  the  injury  is  caused 
by  the  willful  or  gross  negligence  of  the  employer  ''or 
any  managing  officer,  or  managing  agent  of  said  em- 
ployer," leaves  the  door  open  for  much  speculation  as 
to  when  the  employer,  in  any  given  cases,  may  feel 
assured  that  his  liability  is  measured  by  the  compensa- 
tion feature  of  the  statute,  or  that  he  may  save  his 
common-law  defenses  by  showing  a  willingness  to  pay 
compensation  to  his  workmen.  It  is  impossible  to  de- 
termine in  advance  how  this  provision  will  work  out 
in  practice.  For  example,  when  a  case  is  brought  to 
trial,  at  just  what  point  does  the  employer  learn,  for 
the  first  time,  that  he  will  not  be  permitted  to  introduce 
evidence  establishing  the  common-law  defenses?  Is 
this  question  decided  in  the  first  instance  by  the  court 
or  by  the  jury?  Does  the  court  say,  after  the  plaintiff 
has  put  in  his  evidence,  that  the  negligence  of  the 
master  is  willful,  or  gross,  and,  therefore,  evidence  of 
the  common-law  defenses  will  not  be  received?  Ob- 
viously this  practice  would  not  do,  as  this  would  be 
trying  and  deciding  this  particular  question  on  ex  parte 
testimony.  Must,  then,  the  question  be  reserved  until 
all  the  evidence  is  in?  If  so,  who  then  decides  it?  Will 
the  trial  judge  order  the  evidence  of  such  defenses 
stricken  out  and  direct  the  jury  to  disregard  it,  upon 
the  judge's  determination  that  the  negligence  of  the 
master  was  willful  or  gross?  Or  will  the  trial  judge  in- 
struct the  jury  that  if  they  find  the  employer  to  have 
been  willfully  or  grossly  negligent  then  they  shall  dis- 
regard the  evidence  of  the  common-law  defenses  in 
reaching  their  verdict? 


16     Bradbury's  workmen's  compensation  law 

Kansas 

It  is  doubtful  whether  this  portion  of  the  Kansas  Act 
is  wise,  necessary  or  workable. 

2.  Election  of  remedies. 

"§  2.  Reservation  of  liability  for  wrong  or  negligence 
in  certain  cases.    Where  the  injury  was  proximately 
caused  by  the  individual  negligence,  either  of  com- 
mission or  omission,  of  the  employer,  including  such 
;  negligence  of  the  directors  or  of  any  managing  officer 

or  managing  agent  of  such  employer  if  a  corporation, 
or  of  any  of  the  partners  if  such  employer  is  a  partner- 
ship, or  of  any  member  if  such  employer  is  an  asso- 
ciation, but  excluding  the  negligence  of  competent 
employes  in  the  performance  of  their  duties  or  of  the 
employer's  duty  delegated  to  them,  the  existing  lia- 
bility of  the  employer  shall  not  be  affected  by  this 
act,  but  in  such  case  the  injured  workman,  or  if  death 
results  from  such  injury,  his  dependents  as  herein 
defined,  if  they  unanimously  agree,  otherwise  his  legal 
representative,  may  elect  between  any  right  of  action 
against  the  employer  upon  such  liability  and  the  right 
to  compensation  under  this  act." 

The  basic  election  as  to  whether  the  relations  of  em- 
ployer and  his  employ^  shall  be  governed  by  the  com- 
pensation principle  in  the  act  rests  of  course  with  the 
employer.  An  employe  cannot  bring  his  employer 
within  the  terms  of  the  act  unless  the  employer  first 
elects  to  embrace  its  provisions.  Even  should  both 
elect  to  be  bound  by  the  compensation  principle  the 
employ^  may  still  select  his  remedy  under  certain  cir- 
cumstances set  forth  in  §  2  above. 

The  practical  effect  of  the  foregoing  provision  of  §  2, 
it  is  beheved,  is  to  give  the  employ^  a  right  to  elect  in 


ABOLITION    OF   DEFENSES;    ELECTION   OF   REMEDIES       17 

Massachusetts 

virtually  every  case  whether  he  will  demand  "compen- 
sation" or  "damages." 

The  workman  may  take  proceedings  against  one 
person  to  recover  "damages"  and  against  another  to 
recover  "compensation"  for  the  same  injury,  "but  he 
shall  not  be  entitled  to  recover  both  damages  and 
compensation."  §  5  (a).  See  also  Chapter  III,  post, 
page  182,  and  Chapter  XX,  post,  page  353. 


MASSACHUSETTS 
(L.  1911,  c.  751) 

1.  Abolition  of  defenses. 

"Part  I,  §  1.  In  an  action  to  recover  damages  for 
personal  injury  sustained  by  an  employe  in  the  course 
of  his  employment,  or  for  death  resulting  from  per- 
sonal injury  so  sustained,  it  shall  not  be  a  defense: 
"1.  That  the  employe  was  negligent. 
"  2.  That  the  injury  was  caused  by  the  negligence 

of  a  fellow  employe. 

"3.  That  the  employ^  had  assumed  the  risk  of 

the  injury. 

"§  2.  The  provisions  of  section  one  shall  not  apply 
to  actions  to  recover  damages  for  personal  injuries 
sustained  by  domestic  servants  and  farm  laborers. 

"§  3.  The  provisions  of  section  one  shall  not  apply 
to  actions  to  recover  damages  for  personal  injuries 
sustained  by  employes  of  a  subscriber. 

The  Massachusetts  Act  aboUshes  absolutely  the 
three  common-law  defenses  as  to  employers  who  do 
not  elect  to  come  under  the  compensation  feature  of 
the  statute,  except  in  actions  "by  domestic  servants 
and  farm  laborers."  The  effect  of  this  exception  is 
2 


18    Bradbury's  workmen's  compensation  law 

Massachusetts 

that  employers  of  domestic  servants  and  farm  laborers 
may  either  elect  to  pay  compensation  or  not  as  they 
choose.  But  if  they  do  not  elect  to  adopt  the  compen- 
sation principle  there  is  no  penalty  attached,  as  there 
is  with  other  employers,  namely,  the  abolition  of  the 
common-law  defenses.  The  judges  of  the  Supreme 
Court  of  Massachusetts  have  held  that  this  exception 
does  not  render  the  act  unconstitutional.  See  opinion 
in  Chapter  XXXVIII. 

The  judges,  in  the  same  opinion,  also  declared  that, 
*'We  construe  clauses  1  and  2  in  their  reference  to 
negligence  as  meaning  contributory  negligence  or 
negligence  on  the  part  of  a  fellow  servant  which  falls 
short  of  the  serious  and  willful  misconduct  which  under 
Part  II,  §  2,  will  deprive  an  employ^  of  compensation. 
So  construed  we  think  that  the  section  is  constitutional. 
We  neither  express  nor  intimate  any  opinion  whether 
it  would  be  unconstitutional  if  otherwise  construed. 
The  rules  of  law  relating  to  contributory  negligence 
and  assumption  of  the  risk  and  the  effect  of  negligence 
by  a  fellow  servant  were  established  by  the  courts, 
not  by  the  constitution,  and  the  legislature  may  change 
them  or  do  away  with  them  altogether  as  defenses  (as 
it  has  to  some  extent  in  the  employers'  liability  act) 
as  in  its  wisdom  in  the  exercise  of  powers  intrusted  to 
it  by  the  constitution  it  deems  will  be  best  for  the 
'good  and  welfare  of  this  Commonwealth.'  See  Mis- 
souri Pacific  Railway  v.  Mackey,  127  U.  S.  205;  Min- 
nesota Iron  Co.  V.  Kline,  199  U.  S.  593." 

It  would  seem  therefore  that  serious  and  willful 
misconduct  on  the  part  of  an  employe  would  defeat 
his  cause  of  action  against  an  employer  in  a  common- 
law  action  for  damages,  even  though  the  employer 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       19 

Massachusetts 

should  not  elect  to  accept  the  compensation  feature 
of  the  statute. 

2.  Election  of  remedies. 

"Part  I,  §  4.  The  provisions  of  sections  one  hundred 
and  twenty-seven  to  one  hundred  and  thirty-five,  in- 
clusive, and  of  one  hundred  and  forty-one  to  one 
hundred  and  forty-three,  inclusive,  of  chapter  five 
hundred  and  fourteen  of  the  acts  of  the  year  nineteen 
hundred  and  nine,  and  of  any  acts  in  amendment 
thereof,^  shall  not  apply  to  employes  of  a  subscriber 
while  this  act  is  in  effect. 

"  §  5.  An  employe  of  a  subscriber  shall  be  held  to 
have  waived  his  right  of  action  at  common  law  to  re- 
cover damages  for  personal  injuries  if  he  shall  not  have 
given  his  employer  at  the  time  of  his  contract  of  hire, 
notice  in  writing  that  he  claimed  such  right,  or  if  the 
contract  of  hire  was  made  before  the  employer  became 
a  subscriber,  if  the  employe  shall  not  have  given  the 
said  notice  within  thirty  days  of  notice  of  such  sub- 
scription. An  employ^  who  has  given  notice  to  his 
employer  that  he  claimed  his  right  of  action  at  com- 
mon law  may  waive  such  claim  by  a  notice  in  writing 
which  shall  take  effect  five  days  after  it  is  delivered 
to  the  employer  or  his  agent." 

*  The  statute  referred  to  in  §  4  in  the  text  is  an  employers' 
liability  act  containing  the  provisions  usually  found  in  those 
statutes  prior  to  the  enactment  of  workmen's  compensation  laws. 
In  this  instance  the  act  to  which  reference  is  made  contains  the 
provisions  permitting  recovery  in  case  of  injuries  causing  death. 
If,  therefore,  an  employer,  in  Massachusetts,  has  exercised  his 
election  to  embrace  the  compensation  principle  and  an  employ^ 
of  such  employer  has  given  the  proper  notice  that  he  refuses  to 
accept  compensation,  the  dependents  of  such  an  employ^  cannot 
recover  from  the  employer  any  sum  whatsoever  because  of  the 
death  of  such  employ^. 

\ 


20     Bradbury's  workmen's  compensation  law 

Massachusetts 

"Part  III,  §  15.  Where  the  injury  for  which  com- 
pensation is  payable  under  this  act  was  caused  under 
circumstances  creating  a  legal  liability  in  some  person 
other  than  the  subscriber  to  pay  damages  in  respect 
thereof,  the  employ^  may  at  his  option  proceed  either 
at  law  against  that  person  to  recover  damages,  or 
against  the  association  for  compensation  under  this 
act,  but  not  against  both,  and  if  compensation  be 
paid  under  this  act,  the  association  may  enforce  in 
the  name  of  the  employe,  or  in  its  own  name  and  for 
its  own  benefit,  the  liability  of  such  other  person." 

"Part  V,  §  1.  If  an  employ 6  of  a  subscriber  files 
any  claim  with  or  accepts  any  payment  from  the 
association  on  account  of  personal  injury,  or  makes 
any  agreement,  or  submits  any  question  to  arbitration, 
under  this  act,  such  action  shall  constitute  a  release  to 
the  subscriber  of  all  claims  or  demands  at  law,  if  any, 
arising  from  the  injury." 

Of  course  an  employe  cannot  elect  to  claim  compen- 
sation unless  the  employer  has  first  elected  to  embrace 
the  compensation  feature  of  the  statute.  Assuming 
that  the  employer  has  so  elected  the  employe  has  only 
one  remedy,  and  that  is  for  compensation,  unless  he 
has  given  the  notice  required  by  Part  I,  §  5,  above. 

Even  if  the  injury  is  caused  by  the  serious  and  will- 
ful misconduct  of  the  employer  the  employ^  can  re- 
cover only  ''compensation,"  but  in  such  a  case  the  com- 
pensation may  be  doubled  under  Part  II,  §  3,  of  the 
act,  which  is  printed  in  Chapter  II,  post,  page  146. 
Some  of  the  statutes  give  the  employ^  the  right  to 
recover  common-law  ''damages"  when  the  injury  is 
caused  by  the  serious  and  willful  misconduct  or  negli- 
gence of  the  employer,  but  the  Massachusetts  Act  limits 
the  recovery  in  such  cases  to  double  compensation. 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES      21 

Massachusetts 

Serious  consequences  may  result  to  the  dependents 
of  the  employe,  should  he  give  notice  that  he  will  not 
be  bound  by  the  compensation  feature  of  the  statute 
when  his  employer  has  taken  the  necessary  steps  to 
bring  himself  within  that  feature.  Under  such  cir- 
cumstances the  employer  is  not  liable  for  damages  in 
case  of  injury  causing  the  death  of  the  employ^.  This 
result  comes  from  the  provisions  of  the  statute  referred 
to  in  Part  I,  §  4,  of  the  act  (above)  as  construed  by 
the  judges  of  the  Supreme  Court,  passing  on  the  con- 
stitutionality of  the  Compensation  Act.  See  opinion 
in  Chapter  XXXVIII. 

Section  15,  of  Part  III,  printed  above,  evidently 
refers  to  cases  where  a  hability  exists  in  favor  of  a 
workman  as  against  a  third  person,  not  his  employer. 
For  example,  a  workman  might  be  employed  on  a 
building  where  the  employes  of  a  number  of  employers 
were  engaged.  He  might  be  injured  through  the  neg- 
ligence of  an  employ^  of  an  employer  other  than  his 
own.  In  such  a  case  he  should  have  a  common-law 
cause  of  action  for  "damages"  against  the  employer 
of  the  workman  whose  negligence  caused  the  injury. 
He  would  also  have  a  claim  against  his  own  employer 
for  compensation,  if  his  own  employer  had  embraced 
the  compensation  features  of  the  statute.  Under 
Part  III,  §  15,  and  Part  V,  §  1,  above,  the  employ^ 
can  only  enforce  one  remedy.  So  far  as  he  is  concerned 
the  enforcement  of  one  waives  the  other.  But  in 
cases  where  a  common-law  cause  of  action  for  ''dam- 
ages" exists  and  the  Massachusetts  Employes'  Insur- 
ance Association  has  paid  compensation  to  the  work- 
man, such  association  can  enforce  the  cause  of  action 
for  common-law  damages  against  the  person  who  is 


22    Bradbury's  workmen's  compensation  law 

Michigan 

liable  therefor.  Doubtless  a  liability  insurance  com- 
pany which  has  paid  compensation  under  similar  cir- 
cumstances could  also  recover  damages  in  all  cases 
where  the  Massachusetts  Employes'  Insurance  Asso- 
ciation could  enforce  that  remedy.  See  Part  V,  §  3,  as 
am'd  by  L.  1912,  c.  571. 

The  Act  as  originally  passed  provided  in  very  general 
terms  that  liability  insurance  companies  issuing  policies 
in  Massachusetts  should  be  subject  to  all  the  regula- 
tions and  obligations  imposed  on  the  Massachusetts 
Employes'  Insurance  Association.  By  the  amendment 
contained  in  Chapter  571  of  the  Laws  of  1912,  which 
was  approved  by  the  Governor  on  May  10,  1912,  it  is 
specifically  provided  that  such  liability  insurance  com- 
panies shall  be  subject  to  the  provisions  of  Parts  I,  II, 
III  and  V  and  of  §  22  of  Part  IV  of  the  Act,  and  shall 
file  with  the  Insurance  Department  its  classifications 
of  risks  and  premiums  relating  thereto  and  any  subse- 
quent proposed  classifications  or  premiums,  none  of 
which  shall  take  effect  until  approved  by  the  Insurance 
Commissioner. 

MICHIGAN 

(L.  1912,  No.  3) 

1.  Abolition  of  defenses. 

"PART  I 

'Modification  of  Remedies 

"§  1.  In  an  action  to  recover  damages  for  personal 
injury  sustained  by  an  employ6  in  the  course  of  his 
employment,  or  for  death  resulting  from  personal  in- 
juries so  sustained,  it  shall  not  be  a  defense: 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       23 

Michigan 

"(a)  That  the  employe  was  negligent,  unless  and 
except  it  shall  appear  that  such  negligence  was  willful; 

"  (6)  That  the  injury  was  caused  by  the  negligence 
of  a  fellow  employe; 

"(c)  That  the  employ^  had  assumed  the  risks  in- 
herent in  or  incidental  to,  or  arising  out  of  his  employ- 
ment, or  arising  from  the  failure  of  the  employer  to 
provide  and  maintain  safe  premises  and  suitable  ap- 
pliances. 

"§  2.  The  provisions  of  section  one  shall  not  apply 
to  actions  to  recover  damages  for  personal  injuries 
sustained  by  household  domestic  servants  and  farm 
laborers. 

"  §  3.  The  provisions  of  section  one  shall  not  apply 
to  actions  to  recover  damages  for  the  death  of,  or  for 
personal  injuries  sustained  by  employes  of  any  em- 
ployer who  has  elected,  with  the  approval  of  the  in- 
dustrial accident  board  hereinafter  created,  to  pay 
compensation  in  the  manner  and  to  the  extent  herein- 
after provided. 

2.  Election  of  remedies. 

"Part  I,  §  4.  Any  employer  who  has  elected,  with 
the  approval  of  the  industrial  accident  board  herein- 
after created,  to  pay  compensation  as  hereinafter  pro- 
vided, shall  not  be  subject  to  the  provisions  of  section 
one;  nor  shall  such  employer  be  subject  to  any  other 
liability  whatsoever,  save  as  herein  provided  for  the 
death  of  or  personal  injury  to  any  employ^,  for  which 
death  or  injury  compensation  is  recoverable  under  this 
act,  except  as  to  employes  who  have  elected  in  the 
manner  hereinafter  provided  not  to  become  subject  to 
the  provisions  of  this  act." 


24     Bradbury's  workmen's  compensation  law 

Nevada 

NEVADA 

(L.  1911,  c.  183) 

1.  Abolition  of  defenses. 

Defenses  of  assumption  of  risk  and  negligence  of 
fellow  servant  are  abolished.  §  1.  If  the  contributory 
negligence  of  the  servant  is  slight  and  the  negligence 
of  the  master  is  gross  in  comparison,  the  contributory 
negligence  of  the  servant  is  not  a  defense,  but  the  com- 
pensation may  be  diminished,  in  proportion;  ''and  it 
shall  be  conclusively  presumed  that  such  employ^ 
was  not  guilty  of  contributory  negligence  in  any  case 
where  the  violation  of  any  statute  enacted  for  the 
safety  of  employes  contributed  to  such  employe's  in- 
jury." ^    §  1.  See  Chapter  II,  post,  page  150. 

The  Nevada  law  does  not  provide  that  the  common- 
law  defenses  are  abolished  unless  the  employer  adopts 
the  compensation  feature  of  the  statute,  but  contains 
peremptory  provisions  abolishing  such  defenses,  with- 
out reservation.  It  should  be  observed,  however, 
that  by  the  last  sentence  of  §  3  it  is  provided  that, 
''The  employers  to  whom  this  Act  shall  apply  shall  be 
any  person  or  persons,"  etc.,  engaged  in  the  industries 
specified  in  the  previous  portions  of  §  3.  According 
to  the  terms  of  the  Act,  therefore,  the  provision  abol- 
ishing common-law  defenses  applies  only  to  the  em- 
ployers engaged  in  the  industries  specified  and  not 

'  So  many  subjects  are  often  included  in  one  section  in  the  Nevada 
law  that  it  is  impossible  to  segregate  the  sections  without  more 
duplication  than  would  be  justified  in  reprinting  the  sections  com- 
plete several  times  over.  Those  who  desire  to  read  the  statute  in  its 
complete  form  will  find  it  printed  in  a  subsequent  portion  of  this 
volume. 


ABOLITION   OF   DEFENSES;    ELECTION   OF   REMEDIES       25 

Nevada 

generally  to  all  employers.  This,  in  effect,  is  the  same 
rule  that  is  to  be  found  in  the  other  statutes,  but  it 
is  worked  out  in  Nevada  in  a  way  which  is  somewhat 
different  from  that  found  in  the  laws  of  other  juris- 
dictions. 


2.  Election  of  remedies. 

"§  11.  Nothing  in  this  act  contained  shall  be  held 
or  deemed  to  require  any  workman  or  his  personal 
representatives  to  proceed  under  its  terms  and  pro- 
visions for  the  recovery  of  compensation  of  damages 
for  death  or  accidental  injury.  But  if  the  workman  or 
his  personal  representatives  shall  so  elect,  he  or  they 
may  disregard  the  provisions  of  this  act  and  may  pur- 
sue any  other  remedy  at  law  for  the  recovery  of  such 
compensation  or  damages  for  or  on  account  of  such 
death  or  injury.  The  right  of  election  or  choice  of 
remedies  shall  be  exercised  solely  by  such  workman  or 
his  representatives." 

The  Nevada  Act  contains  a  broad  provision  giving 
the  workman  the  absolute  right  to  elect  whether  he 
will  demand  "damages"  or  ''compensation."  While 
§  11,  printed  above,  is  loosely  drawn,  it  would  seem 
that  if  the  workman  elects  to  sue  for  damages  under 
the  common  law  and  his  employer  is  engaged  in  any 
of  the  occupations  specified  in  §  3  (Chapter  II,  post, 
page  152)  that  then  such  employ^  can  pursue  the 
common-law  remedy  without  the  right  of  his  employer 
to  set  up  the  then  common-law  defenses  founded  on 
the  doctrines  of  fellow  servant,  assumption  of  risk,  and 
contributory  negligence,  except  as  the  contributory 
negligence  doctrine  is  modified  by  §  1.  Chapter  II, 
post,  page  150. 


26     Bradbury's  workmen's  compensation  law 

New  Hampshire 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

1.  Abolition  of  defenses. 

In  case  the  employer  fails  to  adopt  the  compensa- 
tion features  of  the  statute  the  fellow-servant  and 
assumption-of-risk  defenses  are  expressly  abolished  by 
§§  2  and  3  of  the  act,  reprinted  in  Chapter  II,  post, 
page  154.  The  defense  of  contributory  negligence, 
however,  is  still  retained.  It  is,  in  effect,  made  an 
affirmative  defense,  it  being  provided,  in  §  2,  that 
"there  shall  be  no  liability  under  this  section  for  any 
injury  to  which  it  shall  be  made  to  appear  by  a  pre- 
ponderance of  evidence  that  the  negligence  of  the 
plaintiff  contributed."    See  Chapter  II,  post,  page  154. 

It  is  further  provided  ''that  the  employer  shall  not 
be  liable  in  respect  to  any  injury  to  the  workman 
which  is  caused  in  whole  or  in  part  by  the  intoxication, 
violation  of  law  or  serious  or  willful  misconduct  of 
the  workman."  §  3.  See  Chapter  II,  post,  page  155. 
The  provision  above  quoted,  however,  applies  only 
to  the  compensation  feature  of  the  statute. 

2.  Election  of  remedies. 

The  elective  part  of  the  statute  is  not  very  clear. 
Apparently  an  attempt  has  been  made  to  avoid  pos- 
sible constitutional  entanglements.  By  §  3  (Chap- 
ter II,  post,  page  155)  it  is  provided  "that  the  employer 
shall  at  the  election  of  the  workman,  or  his  personal 
representatives,  be  liable  under  the  provisions  of 
§  2  of  this  Act  for  all  injury  caused  in  whole  or  in  part 
by  willful  failure  of  the  employer  to  comply  with  any 


ABOLITION    OF   DEFENSES;   ELECTION   OF   REMEDIES       27 

New  Jersey 

statute,  or  with  any  order  made  under  authority  of 
law." 
Then  follows  §  4,  which  provides  as  follows: 

"  §  4.  The  right  of  action  for  damages  caused  by  any 
such  injury,  at  common  law,  or  under  any  statute  in 
force  on  January  one,  nineteen  hundred  and  eleven, 
shall  not  be  affected  by  this  act,  but  in  case  the  injured 
workman,  or  in  event  of  his  death  his  executor  or  ad- 
ministrator, shall  avail  himself  of  this  act,  either  by 
accepting  any  compensation  hereunder,  by  giving  the 
notice  hereinafter  prescribed,  or  by  beginning  pro- 
ceedings therefor  in  any  manner  on  account  of  any 
such  injury,  he  shall  be  barred  from  recovery  in  every 
action  at  common  law  or  under  any  other  statute  on 
account  of  the  same  injury.  In  case  after  such  injury 
the  workman,  or  in  the  event  of  his  death  his  executor 
or  administrator,  shall  commence  any  action  at  com- 
mon law  or  under  any  statute  other  than  this  act 
against  the  employer  therefor,  he  shall  be  barred  from 
all  benefit  of  this  act  in  regard  thereto." 

NEW  JERSEY 
(L.  1911,  c.  95) 

1.  Abolition  of  defenses. 

"§  I,  1.  Employe  entitled  to  compensation  for  acci- 
dental injury.  Fact  determined  by  jury.  When  per- 
sonal injury  is  caused  to  an  employ^  by  accident 
arising  out  of  and  in  the  course  of  his  employment,  of 
which  the  actual  or  lawfully  imputed  negligence  of 
the  employer  is  the  natural  and  proximate  cause,  he 
shall  receive  compensation  therefor  from  his  employer, 
provided  the  employ^  was  himself  not  willfully  negli- 
gent at  the  time  of  receiving  such  injury,  and  the  ques- 
tion of  whether  the  employ^  was  willfully  negligent 


28     Bradbury's  workmen's  compensation  law 

New  Jersey 

shall  be  one  of  fact  to  be  submitted  to  the  jury,  subject 
to  the  usual  superintending  powers  of  a  court  to  set 
aside  a  verdict  rendered  contrary  to  the  evidence. 

"2.  Certain  pleas  abolished.  The  right  to  compen- 
sation as  provided  by  section  I  of  this  act  shall  not 
be  defeated  upon  the  ground  that  the  injury  was 
caused  in  any  degree  by  the  negligence  of  a  fellow  em- 
ploy^;  or  that  the  injured  employe  assumed  the  risks 
inherent  in  or  incidental  to  or  arising  out  of  his  em- 
ployment or  arising  from  the  failure  of  the  employer 
to  provide  and  maintain  safe  premises  and  suitable 
appliances;  which  said  grounds  of  defense  are  hereby 
abolished. 

"4.  Application  of  act  in  case  of  death.  The  pro- 
visions of  paragraphs  one,  two  and  three  ^  shall  apply 
to  any  claim  for  the  death  of  an  employ^  arising  under 
an  act  entitled  '  An  Act  to  provide  for  the  recovery  of 
damages  in  cases  where  the  death  of  a  person  is  caused 
by  wrongful  act,  neglect  or  default,'  approved  March 
third,  eighteen  hundred  and  forty-eight,  and  the 
amendments  thereof  and  supplements  thereto. 

"5.  Burden  of  proof  on  defendant.  In  all  actions 
at  law  brought  pursuant  to  section  I  of  this  act,  the 
burden  of  proof  to  establish  willful  negligence  in  the 
injured  employ^  shall  be  upon  the  defendant." 

The  New  Jersey  statute  is  dual  in  character,  like 
most  of  the  compensation  laws.  It  takes  away  from 
the  employer  the  ordinary,  common-law  defenses  of 
assumption  of  risk  and  negligence  of  fellow  servant, 
where  the  action  is  founded  on  the  ''actual  or  lawfully 

^  Paragraph  three  applies  to  the  liabilitj'-  of  the  principal  con- 
tractor for  injuries  to  a  workman  employed  by  a  subcontractor. 
See  Chapter  III,  post,  page  185. 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       29 

New  Jersey- 
imputed  negligence"  of  the  employer.  In  such  an  ac- 
tion the  workman  will  be  defeated  if  the  employer  can 
show  that  the  employe  was  ''willfully  negligent."  But 
willful  ^  negligence  is  a  question  of  fact  to  be  determined 
by  the  jury,  and  the  burden  of  proof  is  on  the  employer 
to  prove  it.  Under  the  purely  compensation  features 
of  the  act,  the  employe  or  his  dependants  will  not  be 
defeated  in  his  or  their  claim  unless  ''the  injury  or 
death  is  intentionally  self-inflicted,  or  when  intoxication 
is  the  natural  and  proximate  cause  of  injury."  Even 
in  those  cases  the  burden  of  proof  is  still  on  the  em- 
ployer.   See  §  II,  in  Chapter  II,  post,  page  157. 

2.  Election  of  remedies. 

Under  the  common-law  right  of  action  as  retained 
and  modified  in  the  portion  of  the  statute  printed  above 
in  this  chapter,  the  workman  can  sue  for  any  amount, 
provided,  of  course,  he  has  not  elected  to  accept  the 
compensation  feature  in  place  of  his  common-law  right 
of  action.  As  will  be  seen  under  Chapter  II,  all  em- 
ployes waive  the  right  of  action  under  the  common- 
law  and  have  only  such  rights  as  are  granted  under 
the  compensation  feature,  unless  the  employer  or  the 
employe  takes  some  affirmative  action  before  the  ac- 
cident happens.  Both  may  exempt  themselves  from 
the  obligations  imposed  upon  them  under  the  statute 
by  an  express  contract  to  that  effect  in  the  contract  of 
employment.    §  II,  paragraph  9.    Or  either  can  exempt 

1  "For  the  purposes  of  this  Act,  willful  negligence  shall  consist  of 
(1)  deliberate  failure  to  act,  or  (2)  such  conduct  as  evidences  reck- 
less indifference  to  safety,  or  (3)  intoxication,  operating  as  a  proxi- 
mate cause  of  injury."  §  III,  paragraph  23.  See  Chapter  XVII, 
post,  page  339. 


30    Bradbury's  workmen's  compensation  law 

Ohio 

himself  from  the  terms  of  the  Compensation  Act  by  a 
specific  notice  in  writing  to  that  effect.  If,  however, 
there  is  neither  contract  nor  notice,  both  parties  are 
bound  by  the  provisions  of  §  II  relating  to  compensation 
and  neither  can  assert  any  common-law  rights. 

The  New  Jersey  Act,  therefore,  does  not  contain  the 
elective  features  which  are  to  be  found  in  some  of  the 
statutes.  That  is,  after  an  accident  happens,  the  work- 
man cannot  elect  whether  he  will  proceed  under  the 
common  law  for  ''damages"  or  under  the  act  for 
"  compensation." 

Employer  is  declared  to  be  synonymous  with  master 
and  includes  natural  persons,  partnerships  and  corpora- 
tions. §  III,  paragraph  23.  See  Chapter  XVII,  post, 
page  339. 

Employe  is  synonymous  with  servant  and  includes 
all  natural  persons  who  perform  service  for  another 
for  financial  consideration  exclusive  of  casual  em- 
ployments. §  III,  paragraph  23.  See  Chapter  XVII, 
post,  page  339. 

OHIO 

(L.  1911,  c.  000) 

1.  Abolition  of  defenses. 

"§21-1.  Defenses  of  employers  not  paying  insur- 
ance fund  removed.  All  employers  who  employ  five 
or  more  workmen  or  operatives  regularly  in  the  same 
business,  or  in  or  about  the  same  establishment  who 
shall  not  pay  into  the  state  insurance  fund  the  pre- 
miums provided  by  this  act,  shall  be  liable  to  their 
employes  for  damages  suffered  by  reason  of  personal 
injuries  sustained  in  the  course  of  employment  caused 
by  the  wrongful  act,  neglect  or  default  of  the  em- 


ABOLITION   OF   DEFENSES;   ELECTION   OF   KEMEDIES       31 

Ohio 

ployer,  or  any  of  the  employer's  officers,  agents  or 
employes,  and  also  to  the  personal  representatives  of 
such  employes  where  death  results  from  such  injuries 
and  in  such  action  the  defendant  shall  not  avail  him- 
self or  itself  of  the  following  common-law  defenses : 

"The  defense  of  the  fellow-servant  rule,  the  defense 
of  the  assumption  of  risk,  or  the  defense  of  contrib- 
utory negligence. 

The  Ohio  law  is  an  optional  state  insurance  statute. 
The  penalty  for  failure  to  embrace  the  state  insurance 
plan  is  that  the  three  common-law  defenses  of  con- 
tributory negligence,  assumption  of  risk  and  that 
founded  on  the  fellow-servant  rule,  are  abolished 
absolutely.  There  is  no  other  alternative.  An  em- 
ployer cannot  adopt  the  compensation  plan  without 
also  embracing  the  state  insurance  scheme.  The 
plan  is  somewhat  like  that  adopted  by  the  State  of 
Washington  in  that  the  insurance  fund  is  administered 
directly  by  the  State.  In  Washington,  however,  the 
premiums  are  collected  from  every  employer,  in  the 
industries  covered  by  the  statute,  in  somewhat  the 
same  way  that  a  tax  is  collected.  There  are  severe 
penalties  for  failure  to  pay  the  tax,  but  the  Washing- 
ton law  allows  no  option,  on  the  part  of  the  employer, 
to  voluntarily  assume  these  added  penalties  for  failure 
to  embrace  the  state  insurance  plan. 

2.  Election  of  remedies. 

"§21-2.  Willful  act  of  employer.  But  where  a 
personal  injury  is  suffered  by  an  employ^,  or  when 
death  results  to  an  employ^  from  personal  injuries 
while  in  the  employ  of  an  employer  in  the  course  of 
employment,  and  such  employer  has  paid  into  the 


32     Bradbury's  workmen's  compensation  law 

Ohio 

state  insurance  fund  the  premium  provided  for  in  this 
act,  and  in  case  such  injury  has  arisen  from  the  willful 
act  of  such  employer  or  any  of  such  employer's  offi- 
cers or  agents  or  from  the  failure  of  such  employer,  or 
any  of  such  employer's  officers  or  agents,  to  comply 
with  any  municipal  ordinance  or  lawful  order  of  any 
duly  authorized  officer,  or  any  statute  for  the  protec- 
tion of  the  life,  or  safety  of  employes,  then  in  such 
event,  nothing  in  this  act  contained  shall  affect  the 
civil  liability  of  such  employer,  but  such  injured  em- 
ploy^,  or  his  legal  representative  in  case  death  results 
from  the  injury,  may,  at  his  option,  either  claim 
compensation  under  this  act  or  institute  proceedings 
in  the  courts  for  his  damage  ^  on  account  of  such  in- 
jury, and  such  employer  shall  not  be  liable  for  any  in- 
jury to  any  employe,  or  to  his  legal  representative  in 
case  death  results,  except  as  provided  in  this  act. 

Every  employe,  or  legal  representative  in  case  death 
results,  who  makes  application  for  an  award  from  the 
state  Hability  board  of  awards,  waives  his  right  to 
exercise  his  option  to  institute  proceedings  in  any  court. 
Every  employ^  or  his  legal  representative  in  case 
death  results,  who  exercises  his  option  to  institute  pro- 
ceedings in  court  as  provided  in  section  21-2,  waives 
his  right  to  any  award;  except  as  provided  in  section  36 
of  this  act." 

Even  though  an  employer  has  adopted  the  state 
insurance  plan,  in  Ohio,  he  may  still,  under  certain 
circumstances,  be  compelled  to  pay  "damages"  in 
lieu  of  '"compensation,"  if  an  injury  to  an  employe 
occurs  from  a  "willful  act  of  such  employer,"  or  from 

^  In  estimating  the  "damages"  in  a  case  provided  for  in  the  fore- 
going section  the  jury  cannot  consider  any  provision  of  this  act, 
§  38.    See  Chapter  XXVIII,  post,  page  533. 


ABOLITION    OF   DEFENSES;    ELECTION    OF    REMEDIES       33 
Rhode  Island 

the  employer's  failure  to  comply  with  any  state  or 
municipal  law  or  regulation  respecting  safety  devices. 
See  §  21-2,  above.  While  the  employe  has  this  limited 
election,  under  the  foregoing  provision  of  the  law,  he 
cannot  pursue  both  remedies.  He  must  exercise  his 
option  as  to  which  remedy  he  will  choose,  and  this 
option,  once  exercised,  by  making  a  claim  for  ''com- 
pensation" or  bringing  an  action  for  ''damages,"  is 
irrevocable. 


RHODE  ISLAND 
(L.  1912,  c.  000) 
1.  Abolition  of  defenses. 

"Article  I 

"abrogation    of   remedies   and   DEFENSES 

"§  1.  Removal  of  defenses.  In  an  action  to  recover 
damages  for  personal  injury  sustained  by  accident  by 
an  employe  arising  out  of  and  in  the  course  of  his 
emplojinent,  or  for  death  resulting  from  personal 
injury  so  sustained,  it  shall  not  be  a  defense:  (a)  That 
the  employe  was  negligent;  (6)  That  the  injury  was 
caused  by  the  negligence  of  a  fellow  employe;  (c)  That 
the  employe  has  assumed  the  risk  of  the  injury." 

"  §  4.  Employer  who  elects  to  pay  compensation. 
The  provisions  of  section  1  of  this  Article  shall  not 
apply  to  actions  to  recover  damages  for  personal  in- 
juries, or  for  death  resulting  from  personal  iQJuries  sus- 
tained by  employes  of  an  employer  who  has  elected 
to  become  subject  to  the  provisions  of  this  act  as 
provided  in  section  5  of  this  Article." 
3 


34     Bradbury's  workmen's  compensation  law 

Washington 

2.  Election  of  remedies. 

''Art.  I,  §  7.  In  lieu  of  other  remedies.  The  right 
to  compensation  for  an  injury,  and  the  remedy  there- 
for granted  by  this  act,  shall  be  in  lieu  of  all  rights  and 
remedies  as  to  such  injury  now  existing,  either  at 
common  law  or  otherwise;  and  such  rights  and  rem- 
edies shall  not  accrue  to  employes  entitled  to  com- 
pensation under  this  act  while  it  is  in  effect." 


WASHINGTON 
(L.  1911,  c.  74) 

1.  Abolition  of  defenses. 

"§  1.  Declaration  of  police  power.  The  common- 
law  system  governing  the  remedy  of  workmen  against 
employers  for  injuries  received  in  hazardous  work  is 
inconsistent  with  modern  industrial  conditions.  In 
practice  it  proves  to  be  economically  unwise  and  un- 
fair. Its  administration  has  produced  the  result  that 
little  of  the  cost  of  the  employer  has  reached  the  work- 
man and  that  little  only  at  large  expense  to  the  public. 
The  remedy  of  the  workman  has  been  uncertain,  slow 
and  inadequate.  Injuries  in  such  works,  formerly 
'  occasional,  have  become  frequent  and  inevitable.    The 

welfare  of  the  State  depends  upon  its  industries,  and 
even  more  upon  the  welfare  of  its  wage-worker.  The 
State  of  Washington,  therefore,  exercising  herein  its 
police  and  sovereign  power,  declares  that  all  phases 
of  the  premises  are  withdrawn  from  private  contro- 
versy, and  sure  and  certain  relief  for  workmen,  injured 
in  extra  hazardous  work,  and  their  families  and  de- 
pendents is  hereby  provided  regardless  of  questions  of 
fault  and  to  the  exclusion  of  every  other  remedy,  pro- 
ceeding or  compensation,  except  as  otherwise  provided 
in  this  act;  and  to  that  end  all  civil  actions  and  civil 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       35 

Washington 

causes  of  action  for  such  personal  injuries  and  all 
jurisdiction  of  the  courts  of  the  State  over  such  causes 
are  hereby  abolished,  except  as  in  this  act  provided." 

Should  the  employer  fail  to  pay  his  quota  into  the 
state  insurance  fund  the  employe  may  elect  whether 
to  sue  for  damages  under  the  law  as  it  existed  prior 
to  the  enactment  of  the  state  insurance  statute,  or  to 
claim  compensation  from  the  state  insurance  fund. 
Should  the  employe  elect  to  sue  for  damages  in  such 
a  case,  or  should  the  State  sue  the  defaulting  em- 
ployer (as  it  may)  after  the  employe  has  elected  to 
take  compensation,  in  ''any  suit  brought  upon  such 
a  cause  of  action  the  defense  of  fellow  servant  and  as- 
sumption of  risk  shall  be  inadmissible,  and  the  doctrine 
of  comparative  negligence  shall  obtain."  See  §  8  in 
subdivision  2  of  this  chapter,  below. 

2.  Election  of  remedies. 

''§8.  Defaulting  employers.  If  any  employer  shall 
default  in  any  payment  to  the  accident  fund  herein- 
before in  this  act  required,  the  sum  due  shall  be 
collected  by  action  at  law  in  the  name  of  the  State 
as  plaintiff,  and  such  right  of  action  shall  be  in  addi- 
tion to  any  other  right  of  action  or  remedy.  In  re- 
spect to  any  injury  happening  to  any  of  his  workmen 
during  the  period  of  any  default  in  the  paj'^ment  of 
any  premium  under  section  4,  the  defaulting  employer 
shall  not,  if  such  default  be  after  demand  for  payment, 
be  entitled  to  the  benefits  of  this  act,  but  shall  be 
liable  to  suit  by  the  injured  workman  (or  the  husband, 
wife,  child  or  dependent  of  such  workman  in  case 
death  result  from  the  accident),  as  he  would  have 
been  prior  to  the  passage  of  this  act. 

"  In  case  the  recovery  actually  collected  in  such  suit 


36     Bradbury's  workmen's  compensation  law 

Wisconsin 

shall  equal  or  exceed  the  compensation  to  which  the 
plaintiff  therein  would  be  entitled  under  this  act,  the 
plaintiff  shall  not  be  paid  anything  out  of  the  accident 
fund;  if  the  said  amount  shall  be  less  than  such  com- 
pensation under  this  act,  the  accident  fund  shall  con- 
tribute the  amount  of  the  deficiency.  The  person  so 
entitled  under  the  provisions  of  this  section  to  sue 
shall  have  the  choice  (to  be  exercised  before  suit)  of 
proceeding  by  suit  or  taking  under  this  act.  If  such 
person  shall  take  under  this  act,  the  cause  of  action 
against  the  employer  shall  be  assigned  to  the  State 
for  the  benefit  of  the  accident  fund.  In  any  suit 
brought  upon  such  cause  of  action  the  defense  of  fel- 
low servant  and  assumption  of  risk  shall  be  inad- 
missible, and  the  doctrine  of  comparative  negligence 
shall  obtain.  Any  such  cause  of  action  assigned  to  the 
State  may  be  prosecuted  or  compromised  by  the  de- 
partment in  its  discretion.  Any  compromise  by  the 
workman  of  any  such  suit,  which  would  leave  a 
deficiency  to  be  made  good  out  of  the  accident  fund, 
may  be  made  only  with  the  written  approval  of  the 
department." 

WISCONSIN 

1.  Abolition  of  defenses. 

"§2394-1.  In  any  action  to  recover  damages  for 
a  personal  injury  sustained  within  this  State  by  an 
employe  while  engaged  in  the  line  of  his  duty  as  such, 
or  for  death  resulting  from  personal  injury  so  sus- 
tained, in  which  recovery  is  sought  upon  the  ground 
of  want  of  ordinary  care  of  the  employer,  or  of  any 
officer,  agent,  or  servant  of  the  employer,  it  shall  not 
be  a  defense: 

"1.  That  the  employe  either  expressly  or  impliedly 
assumed  the  risk  of  the  hazard  complained  of. 


ABOLITION   OF   DEFENSES;   ELECTION   OF   REMEDIES       37 

Wisconsin 

"2.  When  such  employer  has  at  the  time  of  the 
accident  in  a  common  employment  four  or  more  em- 
ployes, that  the  injury  or  death  was  caused  in  whole 
or  in  part  by  the  want  of  ordinary  care  of  a  fellow 
servant. 

"Any  employer  who  has  elected  to  pay  compensa- 
tion as  hereinafter  provided  shall  not  be  subject  to 
the  provisions  of  this  section  2394r-l. 

"  §  2394-2.  No  contract,  rule,  or  regulation,  shall 
exempt  the  employer  from  any  of  the  provisions  of 
the  preceding  section  of  this  act. 

''§2394-32.  The  legislature  intends  the  contin- 
gency in  subdivision  2  of  section  2394-1  of  this  act 
to  be  a  separable  part  thereof,  and  the  subdivision 
likewise  separable  from  the  rest  of  the  act,  and  that 
part  of  said  section  2394-1  that  follows  subdivision  2, 
likewise  separable  from  the  rest  of  the  act;  so  that  any 
part  of  said  subdivision,  or  the  whole,  or  that  part 
which  follows  said  subdivision  2,  may  fail  without 
affecting  any  other  part  of  the  act." 

The  Wisconsin  Act  eliminates  the  fellow-servant 
and  assumption-of-risk  defenses,  but  leaves  untouched 
the  doctrine  of  contributory  negligence,  in  so  far  as 
common-law  actions  are  concerned.  The  act  provides 
that  the  sections  eliminating  these  defenses  shall  not 
apply  to  "any  employer  who  has  elected  to  pay  com- 
pensation." In  view  of  the  fact  that  any  employer 
who  has  elected  to  pay  compensation  cannot  set  up  any 
such  defenses,  the  exception  to  the  elimination  clause 
seems  somewhat  superfluous.    See  §  2394-1  (2),  above. 

W^hat  was  really  intended  was  that  if  the  employer 
has  elected  to  come  under  the  compensation  feature 
of  the  statute  and  the  employe  has  elected  before  the 
accident  happens  not  to  be  bound  by  the  compensation 


38    Bradbury's  workmen's  compensation  law 

Wisconsin 

provision  of  the  law  but  to  retain  his  common-law 
right  of  action,  then  the  employer  may  set  up  the 
common-law  defenses  in  any  action  which  the  employe 
may  bring.  This,  of  course,  is  to  compel  the  employe 
to  adopt  compensation  whenever  his  employer  has 
done  so. 

2.  Election  of  remedies. 

There  is  no  provision  in  the  Wisconsin  Act  allowing 
a  workman  to  elect,  after  an  accident,  whether  he  will 
take  under  the  compensation  features  or  under  the 
common  law.  In  fact  if  the  employer  brings  himself 
within  the  provisions  of  the  act,  and  the  workman 
does  nothing  to  indicate  that  he  has  not  accepted  the 
right  to  compensation  under  the  act,  the  employer's 
liability  for  compensation  is  ''in  lieu  of  any  other 
liability  whatsoever."  See  §  2394-4,  in  Chapter  II, 
post,  page  171.  But,  of  course,  any  employe  may  re- 
fuse to  accept  compensation  if  he  takes  the  proper 
steps  before  an  accident  happens.  In  such  a  case  he 
may  pursue  his  common-law  right  of  action  for  dam- 
ages. In  that  event,  however,  the  employ^  may  take 
advantage  of  all  the  common-law  defenses  if  the  em- 
ployer has  himself  embraced  the  compensation  features 
of  the  statute. 


CHAPTER  II 

TO  WHOM  ACT  APPLIES 

Page 

1.  Election  to  accept  compensation  principle 39 

2.  Acceptance  of  compensation  principle  as  to  part  only  of 

employes 42 

3.  Accidents  happening  without  the  State  of  the  residence  of 

the  employ^  or  workman 44 

4.  Accidental  bodily  injury 47 

5.  "Arising  out  of  and  in  the  course  of  the  emplojonent" 70 

6.  Who  is  a  "  workman" 110 

7.  W^ho  is  an  agricultural  worker 121 

8.  Who  is  a  casual  employ^ 121 

9.  Serious  and  willful  misconduct 123 

Page  Page 

California 132  New  Hampshire 153 

Illinois 136  New  Jersey 156 

Kansas 141  Ohio 159 

Massachusetts 145  Rhode  Island 161 

Michigan 146  Washington 164 

Nevada 150  Wisconsin 170 

1.  Election  to  accept  the  compensation  principle. 

The  various  statutes  contain  different  methods  of 
bringing  the  employers  and  employes  within  the  terms 
thereof.  Because  of  the  decision  in  the  case  of  Ives  v. 
South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  that  employers 
could  not  be  compelled  to  adopt  the  compensation 
principle  in  such  legislation,  all  the  subsequent  acts  ^ 

1  The  first  compensation  act  in  this  country  was  passed  by  the 
State  of  New  York.     This  was  a  compulsory  act,  as  to  certain 

39 


40    bradbuey's  workmen's  compensation  law 

Election  to  accept  compensation  principle 

except  that  of  the  State  of  Washington,  contain  some 
kind  of  an  option  which  the  employer  may  exercise  or 
not  as  he  chooses.  The  employes  also  have  an  election 
whether  or  not  to  accept  compensation,  even  though 
the  employer  has  declared  in  its  favor.  The  first,  or 
basic,  election,  however,  rests  with  the  employer. 
When  the  employer  has  failed  to  adopt  compensation 
his  employes  cannot,  by  anything  which  they  may  do, 
compel  their  employer  to  embrace  that  principle. 
Once  the  employer  has  declared  in  favor  of  compensa- 
tion then  his  employes  still  have  an  election  whether 
or  not  they  also  will  be  bound  by  that  principle. 

Certain  methods  have  been  used  to  coerce  both  em- 
ployers and  employes  to  adopt  compensation.  If  the 
employer  fails  to  adopt  it  he  is  punished  by  taking 
away  the  common-law  defenses  of  assumption  of  risk, 
negligence  of  fellow  servant  and  in  some  cases,  that  of 
contributory  negligence  of  the  plaintiff.  If,  on  the 
other  hand,  the  employer  declares  in  favor  of  compen- 
sation and  his  employes  decide  not  to  accept  that 
principle,  then  the  employer  may  take  advantage  of 
such  of  the  common-law  defenses  as  are  still  permitted 
under  the  terms  of  any  particular  act,  in  any  actions 
which  are  brought  against  him  by  his  employes  so  de- 
ciding. 

There  are  two  general  methods  of  electing  to  be 
bound  by  the  compensation  principle.  One  may  be 
said  to  be  positive  and  the  other  negative.     For  ex- 

especially  hazardous  employments.  In  other  words,  it  compelled 
the  employers  in  those  employments  to  adopt  the  compensation 
principle.  The  act  was  declared  to  be  unconstitutional  in  the  case 
of  Ives  V.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  which  decision  is 
printed  in  full  in  a  subsequent  portion  of  this  volume. 


TO   WHOM   ACT  APPLIES  41 

Election  to  accept  compensation  principle 

ample,  in  New  Jersey,  both  employers  and  employes 
are  'presumed  to  have  accepted  the  compensation  prin- 
ciple, unless  they  take  some  affirmative  action  to  in- 
dicate to  the  contrary.  This  may  be  termed  the  nega- 
tive method.  In  other  States,  Uke  Massachusetts,  for 
example,  an  employer  can  adopt  the  compensation 
principle  only  by  taking  some  positive  action,  that  is, 
doing  the  acts  which  the  statute  requires  and  posting 
notices  in  his  places  of  business  indicating  his  election. 

Either  one  of  these  two  methods,  with  sUght  varia- 
tions, will  be  found  in  all  the  compensation  statutes, 
except  in  that  of  the  State  of  Washington.  In  that  com- 
monwealth a  purely  state  insurance  law  has  been  passed, 
which  is  obligatory  on  all  employers  and  employes  as 
well,  in  the  occupations  which  the  act  includes.  There 
are  certain  penalties  for  nonpayment  of  the  premiums 
or  assessments  to  the  State  Insurance  Fund,  but  the 
employer  cannot  reUeve  himself  from  the  obhgation  to 
pay  compensation  by  such  default.  He  must  pay  the 
compensation  premiums  in  addition  to  the  penalties. 

As  heretofore  stated,  no  two  of  the  Compensation 
Acts  are  exactly  ahke.  In  this  chapter  there  will  be 
found  indicated  the  employers  and  employes  who  are 
included  in  the  various  state  acts,  as  well  as  a  good  deal 
of  discussion  relating  to  the  general  principles  found 
in  all  the  acts.  For  example,  while  the  definition,  or 
term,  or  phrase  "arising  out  of  and  in  the  course  of  the 
employment"  does  not  appear,  in  so  many  words,  in 
all  the  statutes,  it  is  practically  the  basis  of  each  of 
them,  in  principle,  in  determining  whether  or  not  an 
employ^  is  entitled  to  compensation  for  an  injury  while 
in  his  employer's  service.  In  elucidating  this  and  many 
other  topics  a  large  number  of  EngUsh,  Scotch,  Irish 


42     Bradbury's  workmen's  compensation  law 

Acceptance  of  compensation  as  to  part  of  employds 

and  Canadian  cases  have  been  cited,  where  decisions 
have  been  made  on  provisions  in  the  British  or  Cana- 
dian Compensation  Acts  which  are  similar  in  principle 
to  these  found  in  the  American  state  statutes. 


2.  Acceptance  of  compensation  principle  as  to  part 
only  of  employes. 

One  of  the  most  important  questions  that  has  arisen 
at  the  threshold  in  the  adoption  of  the  compensation 
principle,  relates  to  the  right  of  an  employer  to  accept 
that  principle  as  to  a  portion  of  his  employes  and  re- 
ject it  as  to  the  remainder.  As  all  the  laws  thus  far 
passed,  except  the  state  insurance  law  in  the  State  of 
Washington,  are  elective  statutes,  it  follows  that  the 
employer  has  the  first  right  of  election,  whether  or  not 
he  will  adopt  the  compensation  principle.  Of  course, 
he  does  this  either  by  silence  or  by  some  affirmative 
act,  according  to  the  provisions  of  the  particular  stat- 
ute under  which  he  operates.  The  question  has  arisen : 
Can  the  employer  discriminate  in  making  this  election 
between  different  classes  of  employes?  Can  he  bring 
in  shop  hands  and  exclude  traveling  salesmen,  or  cleri- 
cal employes?  Can  he  include  those  in  a  particularly 
hazardous  portion  of  his  establishment  and  exclude  the 
others  in  a  less  dangerous  occupation?  It  has  been 
urged  that  the  employer  has  the  right  to  make  this 
discrimination,  for  the  reason  that  the  employes  have 
the  right  of  individual  election  whether  or  not  they  shall 
be  bound  by  the  employer 's  election  to  adopt  compensa- 
tion. The  employe's  right  exists  as  to  the  different 
employes  in  the  same  shop.  Some  may  accept  the  com- 
pensation principle,  as  adopted  by  the  employer,  while 
others  may  reject  it,  and  stand  on  their  common-law 


TO   WHOM   ACT   APPLIES  43 

Acceptance  of  compensation  as  to  part  of  employes 

right  of  action,  for  injuries  suffered  in  the  master's  em- 
ployment. 

The  only  decision  on  the  point,  so  far  as  the  author 
is  aware,  is  that  made  by  the  Industrial  Commission 
of  Wisconsin.  To  a  question  by  an  employer  as  to  the 
right  to  file  a  qualified  election  to  come  under  the  com- 
pensation law  the  Commission  replied  as  follows: 

''Under  the  Compensation  Act,  if  you  file  a  general 
notice  of  election,  all  your  employes  will  be  covered  as 
to  all  accidents  happening  in  the  course  of  their  em- 
ployment in  the  State  of  Wisconsin.  The  law  will  not 
cover  accidents  happening  outside  of  the  State.  Some 
few  employers  have  filed  modified  notices  of  election; 
for  instance,  they  have,  in  one  or  two  instances,  ex- 
cluded their  travehng  salesmen  in  the  notice  of  election 
filed.  There  is  some  doubt  about  the  legality  of  such 
filing  of  notice  and  the  Commission  does  not  advise 
modified  notices  of  this  kind,  but  if  you  choose  to  file 
such  a  notice,  the  Commission  will  administer  the  law, 
and  leave  it  to  the  courts  to  say  whether  it  is  sufficient 
to  exclude  a  part  of  your  employes.  The  writer  sug- 
gests that  if  you  desire  to  exclude  your  traveling  sales- 
men from  the  operation  of  the  law  you  can  do  so  by 
having  an  understanding  with  the  salesmen  to  that 
effect,  and  that  within  thirty  days  from  the  time  you 
file  your  notice  of  election,  your  traveling  salesmen 
may  serve  upon  you  a  notice  to  the  effect  that  they  do 
not  desire  to  come  under  the  Act." 

The  author  is  of  the  opinion  that  the  establishment 
of  the  right  to  make  a  qualified  election  would  lead  to 
confusion  and  probably  to  abuses.  It  is  believed  that 
should  the  courts  sustain  such  a  right  under  the  com- 
pensation statutes  that  this  privilege  would  be  abol- 


44    Bradbury's  workmen's  compensation  law 

Accidents  happening  without  the  State 

ished  very  speedily  by  statutory  amendment.  The 
statutes  themselves  specify  the  classes  of  employes  which 
come  within  their  terms.  Should  employers  be  per- 
mitted to  make  other  classifications  this  would  amount, 
in  effect,  to  material  amendments  to  the  statutes.  The 
author  is  of  the  opinion,  therefore,  that  employers  must 
elect  as  to  all  of  their  employes  or  as  to  none,  in  spite 
of  the  right  of  each  employ^  to  elect  separately. 

3.  Accidents  happening  without  the  State  of  the  resi- 
dence of  the  employer  or  the  workman. 

Many  complicated  and  serious  questions  doubtless 
will  arise  over  the  right  to  compensation,  where  an 
injury  occurs  in  one  State  and  the  employer  or  the 
employe  resides  in  another;  or  where  it  occurs  in  a 
State  where  neither  of  them  resides.  Naturally,  the 
compensation  laws,  like  other  state  statutes,  have  no 
extraterritorial  effect.  That  is,  should  the  employer 
and  employ^  both  reside  in  New  Jersey,  for  example, 
and  the  employe  should  be  sent  into  the  State  of  Penn- 
sylvania on  the  employer's  business,  and  there  injured 
(there  being  no  compensation  law  in  Pennsylvania), 
such  employ^  could  not  recover  compensation  in  New 
Jersey.  The  same  rule  has  been  established  in  Great 
Britain. 

The  Workmen's  Compensation  Act  of  1906  has  no 
extraterritorial  force,  and  so  is  not  operative  outside  of 
the  confines  of  the  United  Kingdom,  and  "any  em- 
ployment" in  §  1  (1)  of  the  Act  is  restricted  to  employ- 
ment within  the  boundaries  of  the  United  Kingdom, 
except  in  the  case  of  seamen  who  are  especially  pro- 
vided for  by  §  7.  It  was  held,  therefore,  that  the  de- 
pendent of  a  workman  who  was  a  domiciled  English- 


TO   WHOM   ACT   APPLIES  45 

Accidents  happening  without  the  State 

man  employed  by  English  employers  under  a  contract 
of  service  entered  into  in  England,  who  was  killed  by 
an  accident  arising  out  of  and  in  the  course  of  his  em- 
ployment while  working  in  a  place  beyond  the  limits 
of  the  United  Kingdom,  was  not  entitled  to  compensa- 
tion under  the  Act.  Tomalin  v.  S.  Pearson  &  Son 
(1909),  100  L.  T.  685;  2  B.  W.  C.  C.  1. 

A  charwoman  residing  at  Dover,  England,  was  taken 
by  her  employer,  a  French  woman,  to  Calais,  France, 
on  two  occasions  to  do  work  in  the  employer's  house, 
and  while  at  Calais  she  suffered  an  injury.  It  was  held 
that  the  Compensation  Act  did  not  apply  when  the 
action  was  brought  in  the  County  Court  at  Dover. 
Hicks  V.  Maxton  (1907),  1  B.  W.  C.  C.  150. 

It  is  held  that  where  an  action  is  brought  in  one 
State,  for  injuries  causing  death  in  another  State,  that 
the  plaintiff  may  show  that  the  law  of  the  State  in 
which  the  accident  occurred  permits  recovery  for  death 
in  such  cases,  provided  the  statute  of  the  State  where 
the  accident  happened  is  similar  ^  to  that  of  the  State 
in  which  the  action  is  brought.  Howlan  v.  N.  Y.  & 
N.  J.  Telephone  Co.,  131  App.  Div.  (N.  Y.)  443;  115 
Supp.  316;  Ziemer  v.  Crucible  Steel  Co.,  99  App.  Div. 
169;  90  Supp.  962;  Johnson  v.  Phcenix  Bridge  Co.,  133 
App.  Div.  807;  118  Supp.  88. 

An  action  may  be  maintained  in  the  courts  of  a  State 
founded  on  the  Federal  Employers'  Liability  Act. 
Second  Employers'  Liability  Cases,  223  U.  S.  1  (Re- 
printed in  Chapter  XXXVIII,  post);  Payne  v.  N.  Y., 
Susquehanna  &  W.  R.  Co.,  201  N.  Y.  436.  It  seems 
also  that  an  action  may  be  maintained  in  the  courts  of 
one  State,  based,  partly  at  least,  on  an  employers' 
^  Not  necessarily  identical. 


46    Bradbury's  workmen'^s  compensation  law 

Accidents  happening  without  the  State 

liability  act  of  another  State.     Payne  v.  N.  Y.,  Sus- 
quehanna &  W.  R.  Co.,  201  N.  Y.  436. 

It  has  been  urged  that  if  an  employer  and  an  em- 
ploy6  both  resided  in  Pennsylvania,  where  there  was 
no  compensation  law,  and  the  employ^  should  go  on 
the  employer's  business  into  the  State  of  New  Jersey, 
where  there  was  such  a  statute,  and  should  there  be 
injured,  that  the  Pennsylvania  courts  would  enforce 
the  right  to  compensation  under  the  New  Jersey  law, 
if  the  employ^  in  his  suit  should  plead  and  prove  the 
New  Jersey  statute.  Such  cases  are  complicated,  how- 
ever, by  the  preliminary  question  as  to  whether  or  not 
the  employer  has  exercised  his  option  to  adopt  the 
compensation  principle.  A  serious  question  might 
possibly  arise,  under  the  circumstances  recited  above, 
as  to  the  laws  of  those  stated,  including  New  Jersey, 
where  the  terms  of  the  compensation  acts  are  presumed 
to  have  been  adopted  by  silence  on  the  part  of  the  em- 
ployer. Of  course,  the  question  could  not  arise  at  all 
as  to  those  States  in  which  the  employer  must  take 
some  affirmative  action  to  indicate  that  he  has  adopted 
the  compensation  principle.  In  the  latter  States,  if 
the  employer  has  remained  silent,  there  is  no  doubt 
that  the  employe  could  not  enforce  compensation  in  the 
courts  of  the  State  of  his  and  his  employer's  residence, 
which  had  no  compensation  law,  for  an  accident  which 
happened  in  the  other  State,  which  had  one.  But 
should  the  employer  send  his  employe  on  the  employer's 
business  into  an  adjoining  State  where  the  compensa- 
tion law  is  presumed  to  have  been  adopted  by  the 
silence  of  the  employer,  it  may  possibly  be  that  on  the 
principle  of  the  cases  cited  above  under  the  Employers' 
Liability  Act,  the  employ^  would  be  able  to  enforce  his 


TO   WHOM   ACT   APPLIES  47 

Accidental  bodily  injury 

right  to  compensation  under  the  laws  of  the  State  to 
which  he  was  sent,  in  the  courts  of  the  State  of  the 
residence  of  his  employer  and  himself,  for  an  injury 
occurring  in  the  State  to  which  he  was  sent.  The 
author  is  of  the  opinion,  however,  that  the  state  court 
would  not  enforce  such  a  cause  of  action  unless  the 
laws  of  its  own  State  recognized  the  general  principle 
of  "compensation."  Wooden  v.  Western  N.  Y.  &  P.  R. 
Co.,  126  N.  Y.  10;  Howlan  v.  N.  Y.  &  N.  J.  Telephone 
Co.,  131  App.  Div.  443;  115  Supp.  316.  Otherwise  the 
courts  of  a  State  where  a  compensation  law  had  been 
declared  to  be  unconstitutional  might  be  called  upon 
to  sustain  an  action  under  a  similar  law  of  another 
commonwealth. 

4.  Accidental  bodily  injury.  * 

All  the  acts  contain  in  one  form  or  another  the  ex- 
pression, or  the  idea  in  other  words,  of  an  accidental 
bodily  injury,  as  being  the  basis  of  compensation.  If 
a  workman  intentionally  inflicts  an  injury  to  himself,  of 
course  it  is  not  ''accidentally"  inflicted.  There  were 
a  number  of  American  cases  on  this  subject,  decided 
prior  to  the  adoption  of  the  compensation  laws,  which 
are  still  applicable.  But  the  compensation  statutes 
have  so  broadened  the  field  by  eliminating  the  question 
of  the  master's  negligence  as  an  element  in  an  acci- 
dental injury,  that  not  all  of  the  American  cases  can 
now  be  considered  as  precedents  to  be  followed  under 
the  new  doctrine.  The  EngUsh,  Irish,  Scotch  and 
Canadian  cases  arising  directly  under  compensation 
statutes  will  be  found  thoroughly  covered  in  the  pages 

1  See  also  next  title,  "Arising  out  of  and  in  the  Course  of 
Employment." 


48    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

which  immediately  follow.  Some  American  cases  which 
have  been  found  to  be  still  applicable  have  been  in- 
serted also.  The  italic  topical  first  lines  will  guide  the 
investigator  to  the  solution  of  his  own  particular  ques- 
tion. 

In  relation  to  an  accident  insurance  policy  the  United 
States  Supreme  Court  has  defined  the  term  "acciden- 
tal" as  follows:  "The  term  'accidental'  was  used  in 
the  policy  in  its  ordinary,  popular  sense,  as  meaning 
happening  by  chance;  unexpectedly,  or  as  not  expected. 
If  a  result  is  such  as  follows  from  ordinary  means, 
voluntarily  employed,  in  a  not  unusual  or  unexpected 
way,  it  cannot  be  called  a  result  effected  by  accidental 
means.  But  if,  in  the  act  which  precedes  the  injury, 
something  unforeseen,  unexpected,  unusual  occurs  which 
produces  injury,  then  the  injury  has  resulted  through 
accidental  means."  Mutual  Accident  Assn.  v.  Barry, 
131  U.  S.  100,  121;  9  Sup.  Ct.  R.  755;  33  L.  Ed.  60. 

Word  accident  to  be  used  in  popular  or  ordinary  sense. 
The  question  of  whether  or  not  an  injury  is  an  accident 
within  the  meaning  of  the  Act  is  a  mixed  one  of  law  and 
fact.  Roper  v.  Greenwood  (1900),  83  L.  T.  471;  3  W. 
C.  C.  23.  The  House  of  Lords  has  held  that  the  word 
"accident"  is  to  be  used  in  the  popular  and  ordinary 
sense  of  the  word  as  denoting  an  unlooked-for  mishap 
or  an  untoward  event  which  is  not  expected  or  designed. 
Fenton  v.  Thorley  &  Co.  (1903),  A.  C.  443;  5  W.  C.  C.  1. 
In  the  last-mentioned  case  the  workman  had  by  over- 
exertion ruptured  himself  in  trjdng  to  turn  the  wheel  of 
a  machine  in  the  ordinary  course  of  his  employment, 
and  it  was  held  by  the  House  of  Lords  that  he  had 
suffered  an  accident  within  the  meaning  of  the  Act. 

Question  of  law  when  applied  to  ascertained  facts.    Un- 


TO  WHOM  ACT  APPLIES  49 

Accidental  bodily  injury 

der  the  British  Act  the  meaning  of  the  word  ''acci- 
dent," when  appUed  to  ascertain  facts  has  been  de- 
cided by  the  House  of  Lords  to  be  a  question  of  law. 
Fenton  v.  Thorley  &  Co.,  19  T.  L.  R.  684. 

Lightning.  Where  a  bricklayer  working  on  a  scaffold 
twenty-three  feet  from  the  ground  was  struck  by  hght- 
ning  and  killed  it  was  held  that  the  accident  arose  out 
of  the  employment  and  the  widow  was  entitled  to 
compensation.  Andrew  v.  Failsworth  Industrial  Soc. 
(1904),  90  L.  T.  611;  6  W.  C.  C.  11.  The  last  men- 
tioned case  was  decided  by  the  Court  of  Appeal  of 
England.  The  case  was  not  decided  squarely  on  the 
ground  that  in  all  cases  where  a  workman  was  killed 
by  Ughtning  his  dependents  would  be  entitled  to  com- 
pensation. The  judgment  of  the  court  below  was 
adopted  to  the  effect  that  this  particular  workman  was 
in  a  more  than  ordinarily  dangerous  position  as  to 
lightning. 

Attack  by  strikers.  It  has  been  held  that  an  injury 
sustained  by  a  workman  during  an  attack  on  the  works 
by  strikers  is  not  an  injury  by  accident.  Murray  v. 
Denholm  &  Co.  (1911),  48  Scotch  L.  R.  896;  distinguish- 
ing Nisbet  V.  Rayne  &  Burn  (1910),  2  K.  B.  689;  3  B. 
W.  C.  C.  507,  where  a  cashier  employed  regularly  to 
carry  wages  by  train  to  a  colliery,  was  shot  by  a  stranger 
and  the  wages  were  stolen  and  it  was  held  that  his 
dependents  were  entitled  to  compensation. 

Attack  by  poachers.  A  gamekeeper,  while  in  the  dis- 
charge of  his  duties,  was  attacked  by  poachers  and 
injured.  It  was  held  that  this  was  a  personal  injury  by 
accident.  Anderson  v.  Balfour  (1910),  44  Irish  L.  T. 
168;  3  B.  W.  C.  C.  588. 

Murder  committed  by  robber.  A  cashier  employed 
4 


50    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

regularly  to  carry  wages  by  train  to  a  colliery  was  shot 
by  a  stranger  in  the  course  of  the  journey  and  the 
wages  were  stolen.  It  was  held  that  his  death  was 
caused  by  an  accident  and  that  the  accident  arose  out 
of  and  in  the  course  of  his  employment.  Nisbet  v. 
Rayne  &  Burn  (1910),  2  K.  B.  689;  3  B.  W.  C.  C.  507. 

Sailor  on  board  his  ship  in  foreign  port  hit  by  stray 
bullet  shot  by  revolutionist.  The  applicant  for  compen- 
sation was  quartermaster  on  the  steamship  ''Warrior." 
Upon  arriving  at  Pernambuco,  Brazil,  it  was  learned 
that  a  revolution  was  in  progress  and  fighting  was 
plainly  heard  in  the  town.  The  members  of  the  crew 
were  not  permitted  to  go  on  shore  in  consequence. 
While  the  applicant  was  engaged  in  his  duties  on  the 
ship  he  was  hit  by  a  stray  bullet  and  wounded.  It  was 
held  by  the  Liverpool  County  Court  that  the  connec- 
tion between  the  employment  and  the  accident  was 
too  remote  to  entitle  the  applicant  to  compensation. 
The  court  said  that  the  risk  was  one  not  ordinarily 
incident  to  the  employment  of  a  seaman,  nor  a  special 
risk  which  could  reasonably  be  foreseen  and  to  which 
the  applicant  was  ordered  to  expose  himself.  More- 
over, the  applicant  was  not  specially  exposed  as  com- 
pared with  anyone  else  within  range  of  the  shots.  Com- 
pensation was  therefore  refused.  McShane  v.  Harrison 
(March,  1912),  reported  in  "The  PoUcy  Holder," 
April  10,  1912,  page  296. 

Drowning  from  tug.  An  engineer  who  was  employed 
on  board  a  small  steam  tug,  was  last  seen  asleep  in  his 
bunk  at  5  A.  M.  An  hour  afterward  he  had  disappeared, 
leaving  his  working  clothes  lying  at  the  side  of  his  bunk. 
The  tug  was  to  commence  towing  at  7  a.  m.  that 
morning  and  steam  had  been  ordered  to  be  got  up  for 


TO   WHOM   ACT  APPLIES  51 

Accidental  bodily  injury 

that  hour.  The  deck  was  a  place  where  between  five 
and  seven  a.  m.  he  was  entitled  to  be.  Two  days 
afterward  his  body,  clad  in  his  ordinary  sleeping  clothes, 
was  found  in  the  water  near  the  place  where  the  tug 
had  been  moored  on  the  morning  in  question.  The 
examining  physician  testified  that  the  man's  death  was 
due  to  drowning.  It  appeared  in  evidence  that  he  was 
unable  to  swim,  but  there  was  no  direct  testimony  as 
to  how  the  deceased  had  met  with  his  death.  It  was 
held  that  the  arbitrator  was  entitled  to  draw  the  in- 
ference of  fact  that  the  workman  had  accidentally  fallen 
overboard  and  been  drowned,  and  that  the  accident 
arose  out  of  and  in  the  course  of  the  man's  employ- 
ment. Mackinnon  v.  Miller  (1909),  46  Scotch  L.  R. 
299;  2  B.  W.  C.  C.  64. 

Condition  due  to  defective  medical  treatment  It 
seems  that  a  workman  is  entitled  to  compensation, 
although  his  condition  is  attributable  to  defective 
medical  treatment.  Beadle  v.  Milton  &  Others  (1903), 
114  L.  T.  550;  5  W.  C.  C.  55.  Whether  present  in- 
capacity for  work  results  from  the  injury  or  from 
neglect  of  medical  or  surgical  advice  is  a  question  of 
fact.  Smith  v.  Cord  Taton  Colliery  Co.  (1900),  2  W.  C. 
C.  121. 

"Larking"  or  joking.  One  of  two  boys  was  injured  in 
avoiding  a  handful  of  rubbish  which  was  thrown  at 
him  by  another  boy,  and  it  was  held  that  the  accident 
did  not  arise  out  of  the  employment.  William  Baird 
Co.  V.  Burley  (1908),  45  Scotch  L.  R.  416;  1  B.  W.  C.  C. 
7.  A  boy  set  to  clean  a  machine  at  rest  was  "larking" 
with  another  boy  and  accidentally  started  the  machine 
thereby  injuring  himself,  and  it  was  held  that  the  acci- 
dent did  not  arise  out  of  the  employment.    Cole  v.  Evans, 


52    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

Son,  Lescher  &  Webb  (1911),  4  B.  W.  C.  C.  138.  To 
the  same  effect,  Furniss  v.  Gartside  &  Co.  (1910),  3  B. 
W.  C.  C.  411. 

Piece  of  steel  hitting  eye.  While  engaged  in  chipping 
the  burs  from  a  steel  plate  with  a  cold  chisel,  the  work- 
man was  injured  by  a  piece  of  the  steel  so  chipped  off, 
striking  him  in  the  eye  and  destroying  his  sight.  It 
was  held  that  this  was  an  accident  within  the  meaning 
of  the  British  Compensation  Act.  Neville  v.  Kelly 
Bros.  &  Mitchell  (1907),  13  B.  C.  125;  1  B.  W.  C.  C. 
432. 

"Heat  stroke."  A  seaman  employed  as  a  trimmer  on 
board  the  steamship  Majestic  while  engaged  in  drawing 
ashes  from  the  ship's  furnace,  had  a  ''heat  stroke"  and 
died  therefrom  about  two  hours  afterwards.  The  sea- 
man was  in  a  weakly  state  of  health  and  of  low  vitality 
when  he  entered  upon  his  duties,  and  consequently 
liable  to  such  attack.  It  was  held  by  the  House  of 
Lords,  upholding  the  decision  of  the  Court  of  Appeal 
in  Ireland,  that  the  ''heat  stroke"  was  a  personal  in- 
jury by  accident.  Ismay-Imrie  &  Co.  v.  Williamson 
(1908),  42  Ir.  L.  T.  213;  1  B.  W.  C.  C.  232.  In  the 
last-mentioned  case  the  Lord  Chancellor  said:  "To  my 
mind  the  weakness  of  the  deceased  which  predisposed 
him  to  this  form  of  attack  is  immaterial.  The  fact  that 
a  man  who  has  died  from  a  heat  stroke  was  by  physical 
debility  more  Ukely  than  others  so  to  suffer  can  have 
nothing  to  do  with  the  question  whether  what  befell 
him  is  to  be  regarded  as  an  accident  or  not.  *  *  *  in 
my  view  this  man  died  from  an  accident.  What  killed 
him  was  a  heat  stroke  coming  suddenly  and  unex- 
pectedly upon  him  while  at  work.  Such  a  stroke  is  an 
unusual  effect  of  a  known  cause,  often,  no  doubt. 


TO  WHOM  ACT  APPLIES  53 

Accidental  bodily  injury 

threatened,  but  generally  averted  by  precautions  which 
experience,  in  this  instance,  had  not  taught.  It  was  an 
unlooked-for  mishap  in  the  course  of  his  employment. 
In  common  language,  it  was  a  case  of  accidental  death. 
I  feel  that,  in  construing  this  Act  of  Parliament,  as  in 
other  cases,  there  is  a  risk  of  frustrating  it  by  excess  of 
subtlety,  which  I  am  anxious  to  avoid."  Citing  Fenton 
V.  Thorley  &  Co.  (1903),  A.  C.  C.  443;  5  W.  C.  C.  1, 
with  approval. 

A  fireman  on  board  ship  was  seen  frequently  drinking 
water  while  in  the  stoke  hole.  Soon  after  he  was  found 
to  be  very  ill.  He  next  became  unconscious  and  died. 
No  post-mortem  was  held  and  the  medical  evidence 
as  to  the  cause  of  death  was  conflicting.  The  County 
Court  judge  granted  compensation,  and  on  appeal  it 
was  held  that  the  question  as  to  whether  or  not  the 
workman  did,  in  effect,  sustain  a  personal  injury  by 
accident,  arising  out  of  and  in  the  course  of  the  em- 
ployment, was  one  of  fact  for  the  County  Court  judge 
to  decide.  Johnson  and  Others  v.  Owners  of  Ship  "  Tor- 
rington''  (1909),  3  B.  W.  C.  C.  68. 

Sunstroke.  Sunstroke  has  been  held  to  constitute  an 
accidental  injury.  Morgan  v.  Owners  of  S.  S.  Zenaida 
(1909),  25  T.  L.  R.  446;  2  B.  W.  C.  C.  19.  The  last- 
mentioned  case  was  decided  by  the  Court  of  Appeal  of 
England.  The  applicant,  an  ordinary  seaman,  while 
engaged  in  painting  the  vessel  when  she  was  lying  at  a 
port  on  the  coast  of  Mexico  was  incapacitated  by  sun- 
stroke. The  medical  evidence  was  to  the  effect  that  a 
seaman  painting  the  outside  of  a  ship  is  running  a 
greater  risk  of  sunstroke  than  when  employed  on  deck, 
because  he  not  only  gets  the  direct  rays  of  the  sun,  but 
he  also  gets  the  reflected  rays  from  the  ship's  side. 


54    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

Sunstroke,  however,  is  generally  classified  as  a 
disease  rather  than  an  accident.  Dozier  v.  Fidelity  & 
Casualty  Co.,  46  Fed.  446;  13  L.  R.  A.  114. 

Inflammation  of  kidneys  from  working  in  water.  A 
workman  was  employed  in  a  millrace,  where  he  had  to 
work  for  a  fortnight  up  to  his  knees  in  water.  As  a 
result  he  contracted  inflammation  of  the  kidneys  and 
died.  It  was  held  that  this  was  a  personal  injury  by 
accident.  Sheeran  v.  F.  &  J.  Clayton  &  Co.  (1909),  44 
Irish  L.  T.  52;  3  B.  W.  C.  C.  583. 

Frostbite.  Whether  or  not  an  injury  caused  by  frost- 
bite sustained  by  a  van  driver  was  an  accident  was 
discussed,  but  not  decided,  in  the  case  of  Warner  v. 
Couchman  (1911),  1  K.  B.  351;  4  B.  W.  C.  C.  32.  In  the 
last-mentioned  case  a  journeyman  baker,  a  portion  of 
whose  duty  it  was  to  drive  his  master's  cart  and  deliver 
bread,  was  frostbitten  in  the  hand.  It  was  found  that 
there  was  nothing  in  the  man's  employment  which  ex- 
posed him  to  more  than  the  ordinary  risk  of  cold  to  which 
any  person  working  in  the  open  was  exposed  on  the  day 
in  question.  It  was  held  by  the  Court  of  Appeal  of  Eng- 
land that  this  was  not  an  accident  arising  out  of  the 
employment  within  the  meaning  of  the  Act. 

In  another  case  a  seaman  at  work  on  his  ship  at  Hal- 
ifax, N.  S.,  sustained  frostbite.  The  judge  found  that 
the  workman  had  not  proved  that  the  frostbite  was  due 
to  any  particular  circumstance  in  connection  with  his 
employment,  nor  had  he  been  exposed  to  more  risk  of 
frostbite  than  is  usual  in  winter  at  Halifax,  and  it  was 
held  that  the  accident  did  not  arise  out  of  the  employ- 
ment. Karemaker  v.  Owners  of  S.  S."  Corsican''  (1911), 
4  B.  W.  C.  C.  295.  In  the  last-mentioned  case  the 
court  said:  ''Halifax  is  a  place  where  people  do  receive 


TO   WHOM   ACT  APPLIES  55 

Accidental  bodily  injury 

frostbite,  and  therefore  it  is  proper  and  necessary  to 
take  steps  to  guard  against  it.  In  that  sense  the  ha- 
bility  to  frostbite  is  one  of  the  normal  incidents  to 
which  everybody  is  subjected  by  reason  of  the  severity 
of  the  climate." 

''Beat  hand''  or  "beat  knee."  Contracting  ''beat  hand" 
or  "beat  knee,"  a  miner's  disease  or  injury  caused  by 
the  gradual  process  of  continued  friction,  is  not  an 
accident.  Marshall  v.  East  Holywell  Coal  Co.  (1905), 
7  W.  C.  C.  19. 

Rupture.  Rupture  caused  by  overexertion  in  the 
course  of  a  man's  work  is  an  accident  within  the  mean- 
ing of  the  Compensation  Act.  (House  of  Lords),  Fenton 
V.  J.  Thorley  &  Co.  (1903),  89  L.  T.  000;  5  W.  C.  C.  1. 
The  court  disapproved  of  the  cases  of  Hensey  v.  White 
(1900),  1  Q.  B.  481;  2  W.  C.  C.  1;  Roper  v.  Greenwood 
(1901),  83  L.  T.  471;  3  W.  C.  C.  23,  and  approved  of 
the  decision  of  the  Court  of  Sessions  in  Scotland  re- 
ported in  the  case  of  Stewart  v.  Wilsons  &  Clyde  Com- 
pany (1903),  5  F.  120.  The  court  also  cited  in  support 
of  the  doctrine  announced  the  following  American 
cases:  United  States  Mutual  Accident  Ins.  Ass'n  v. 
Barry  (1888),  131  U.  S.  100,  and  North  American  Life 
&  Accident  Ins.  Co.  v.  Burroughs,  69  Penn.  43. 

A  workman  who  was  slightly  ruptured  at  the  time  he 
entered  the  employer's  service,  in  the  course  of  his  work 
had  to  subject  himself  to  an  unusual  though  not  to  a 
unique  strain.  The  result  of  this  strain  was  to  increase 
the  rupture  and  incapacitate  the  workman  from  follow- 
ing his  employment.  It  was  held  that  although  from 
a  purely  medical  or  surgical  view,  thie  injury  could  not 
be  said  to  be  an  untoward  or  unexpected  event,  it  was 
nevertheless  an  accident  within  the  meaning  of  the  Act. 


56    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

Fulford  V.  Northfleet  Coal  &  Ballast  Co.  (1907),  1  B.  W. 
C.  C.  222.  A  workman  who  had  been  operated  on  for 
a  hernia  subsequently  was  compelled  to  wear  a  truss 
because  of  the  reappearance  of  the  hernia.  Several 
months  after  he  began  wearing  the  truss,  while  he  was 
driving  cows  over  some  moorland  country  the  rupture 
came  down  and  became  strangulated.  He  was  oper- 
ated upon  again  but  died  from  exhaustion.  It  was  held 
that  there  was  no  evidence  to  support  an  inference 
that  the  deceased  met  with  an  accident.  Walker  v. 
Hurrays  (1911),  48  Scotch  L.  R.  741 ;  4  B.  W.  C.  C.  409. 

A  workman  who  ruptured  himself  while  lifting  some 
planks  in  the  usual  course  of  his  employment  was  held 
to  have  suffered  an  injury  by  accident.  Timmins  v. 
Leeds  Forge  Co.,  16  T.  L.  R.  521. 

Sprains  and  strains.  A  workman  in  his  master's 
field,  finding  that  the  grain  had  been  trodden  down  by 
bullocks,  stooped  to  raise  it  and  sprained  his  left  leg. 
This  injury  subsequently  developed  into  traumatic 
phlebitis  and  it  was  held  that  this  was  a  personal  in- 
jury by  accident  within  the  meaning  of  the  Compensa- 
tion Act.  Purse  v.  Hayward  (1908),  1  B.  W.  C.  C.  216. 
A  man  at  work  called  out  that  he  had  hurt  his  back. 
No  one  saw  what  had  happened.  He  was  taken  home 
complaining  of  pains  in  the  back  and  stomach.  He 
died  a  week  later  of  intestinal  obstruction.  There  was 
evidence  of  previous  illnesses  and  pains  in  the  stomach. 
It  was  held  that  the  onus  of  proving  an  accident  had  not 
been  discharged.  Farmer  v.  Stafford,  Allen  &  Sons 
(1911),  4  B.  W.  C.  C.  223.  An  internal  injury  caused 
to  a  person  in  a  normal  state  of  health  by  a  fortuitous 
and  unforeseen  event  in  the  usual  course  of  his  business 
is  an  accident.    So  held  in  a  case  where  a  workman 


TO   WHOM   ACT  APPLIES  57 

Accidental  bodily  injury 

while  lifting  a  heavy  beam  suddenly  tore  several  fibers 
of  the  muscles  of  his  back.  Boardman  v.  Scott  &  Whit- 
worth  (1901),  3  W.  C.  C.  33,  aff'd  (1901),  85  L.  T.  502; 
4  W.  C.  C.  1. 

A  woman  suffering  from  an  ailment  which  she  knew 
would  be  aggravated  by  lifting  boxes  which  were  too 
heavy  for  her,  notwithstanding  continued  the  work 
and  strained  herself.  It  was  held  that  this  was  not  an 
accident.    Roper  v.  Greenwood  (1900),  3  W.  C.  C.  23. 

A  man  was  employed  in  moving  heavy  planks  from 
one  pile  to  another.  During  the  night  the  planks  were 
all  frozen  together  so  that  there  was  some  difficulty  in 
separating  them.  The  lower  planks  in  the  pile  were 
more  firmly  stuck  together  than  those  above,  but  the 
man  was  not  aware  of  this.  He  sustained  an  injury 
owing  to  the  difficulty  of  moving  one  of  the  lower 
planks.  It  was  held  that  there  was  evidence  of  an 
accident.    Timmins  v.  Leeds  Forge  Co.,  2  W.  C.  C.  10. 

The  word  "accident"  involves  the  idea  of  something 
fortuitous  and  unexpected.  A  man  who  was  not  in  a 
sound  condition  of  health  injured  himself  when  doing 
his  ordinary  work  which  was  somewhat  harder  than 
usual.  It  was  held  that  the  injury  was  not  caused  by 
accident.  Hensey  v.  White  (1900),  81  L.  T.  767;  2  W. 
C.  C.  1. 

Overexertion.  A  workman,  in  the  course  of  his  ordi- 
nary and  usual  employment,  overexerted  himself  and 
eventually  brought  on  an  attack  of  cerebral  hemorrhage, 
and  it  was  held  that  the  occurrence  was  an  accident 
within  the  meaning  of  the  Act.  M'Innes  v.  Dunsmuir 
&  Jackson  (1908),  45  Scotch  L.  R.  804;  1  B.  W.  C.  C. 
226.  See  to  the  same  effect,  Martin  v.  Travelers'  Ins. 
Co.,  1  F.  &  F.  505. 


58    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

Apoplexy.  A  collier  died  of  apoplexy  during  working 
hours  in  a  mine.  The  majority  of  the  doctors  said  that 
his  arteries  were  in  a  very  diseased  condition,  and  that 
apoplexy  might  have  come  upon  him  when  asleep  in 
bed,  or  when  walking  about,  or  when  overexerting 
himself.  The  collier's  work  on  that  day  was  to  build 
a  pack,  but  there  was  no  evidence  that  apoplexy  came 
upon  him  when  he  was  incurring  a  strain.  It  was  held 
that  as  the  evidence  as  to  the  cause  of  death  was  equally 
consistent  with  an  accident  and  with  no  accident,  and 
the  onus  of  proving  that  it  was  due  to  accident  rested 
on  the  applicants,  in  this  case  that  onus  had  not  been 
discharged  by  them.  Barnabas  v.  Bersham  Colliery  Co. 
(1910),  4  B.  W.  C.  C.  119. 

Fits  causing  fall.  Where  a  laboring  man  working 
near  an  open  hatchway  was  seized  with  epileptic  fits 
and  fell  down  the  hold,  it  was  held  that  this  was  an 
accidental  injury  even  though  the  having  of  the  fit 
itself,  if  it  had  taken  place  under  circumstances  such  as 
not  to  cause  an  injury,  would  not  have  been  an  acci- 
dent. Wilkes  (or  Wicks)  v.  Dowell  &  Co.  (1905),  2  K. 
B.  225;  7  W.  C.  C.  14. 

Heart  disease.  A  workman  had  for  years  been  suffer- 
ing from  progressive  heart  disease.  While  hurrying  to 
the  station  with  a  parcel,  in  the  course  of  his  employ- 
ment, he  was  taken  ill  and  died.  It  was  held  that  the 
death  was  attributable  to  the  disease  and  that  there 
was  no  evidence  of  accident  within  the  meaning  of  the 
Act.  O'Hara  v.  Hayes  (1910),  44  Irish  L.  T.  71;  3  B. 
W.  C.  C.  586. 

A  workman  suffering  from  an  advanced  aneurism  of 
the  aorta  was  doing  his  work  in  the  ordinary  way  by 
tightening  a  nut  with  a  spanner.    This  ordinary  strain 


TO  WHOM  ACT  APPLIES  59 

Accidental  bodily  injury 

caused  a  rupture  of  the  aneurism,  resulting  in  death. 
The  County  Court  judge,  on  conflicting  evidence,  found 
that  the  workman's  death  resulted  from  personal  in- 
jury by  accident  within  the  meaning  of  the  Act.  It  was 
held  in  the  House  of  Lords  that  there  was  evidence 
on  which  the  County  Court  judge  was  justified  in  so 
deciding.  Clover,  Clayton  &  Co.  v.  Hughes  (1910),  A.  C. 
242;  3  B.  W.  C.  C.  275,  aff'g  2  K.  B.  798;  2  B.  W.  C.  C. 
15.  The  above-entitled  case  was  considered  at  great 
length  in  the  various  opinions  written  in  the  House  of 
Lords.  Lord  Loreburn  wrote  the  principal  opinion,  and 
in  the  course  of  it  he  said:  "In  this  case  a  workman, 
sufifering  from  an  aneurism  in  so  advanced  a  state  of 
disease  that  it  might  have  burst  at  any  time,  was 
tightening  a  nut  with  a  spanner,  when  the  strain,  quite 
ordinary  in  this  quite  ordinary  work,  ruptured  the 
aneurism,  and  he  died.  This  is  a  mere  summary  of  the 
facts.  *  *  *  In  what  I  am  about  to  say  I  take  the 
facts  as  he  found  them  in  extenso  and  reply  upon 
them.  *  *  *  It  may  be  said,  and  was  said,  that  if  the 
act  admits  of  a  claim  in  the  present  case,  every  one 
whose  disease  kills  him  while  he  is  at  work  will  be  en- 
titled to  compensation.  I  do  not  think  so  and  for  this 
reason.  It  may  be  that  the  work  has  not,  as  a  matter 
of  substance,  contributed  to  the  accident,  though  in 
fact  the  accident  happened  while  he  was  working.  In 
each  case  the  arbitrator  ought  to  consider  whether,  in 
substance,  as  far  as  he  can  judge  on  such  a  matter,  the 
accident  came  from  the  disease  alone,  so  that  whatever 
the  man  had  been  doing  it  would  probably  have  come 
all  the  same,  or  whether  the  employment  contributed 
to  it.  In  other  words,  did  he  die  from  the  disease  alone 
or  from  the  disease  and  employment  taken  together, 


60    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

looking  at  it  broadly?  Looking  at  it  broadly,  I  say, 
and  free  from  over  nice  conjectures:  Was  it  the  disease 
that  did  it  or  did  the  work  he  was  doing  help  in  any 
material  degree?  In  the  present  case  I  might  have 
come  to  a  different  conclusion  on  the  facts  had  I  been 
arbitrator,  but  I  am  bound  by  the  findings,  if  there  was 
evidence  to  support  them.  It  is  found  that  the  strain 
contributed  to  the  death.  There  was  evidence  on 
which  the  learned  judge  was  entitled  so  to  find,  as  I 
respectfully  think,  and  I,  therefore,  advise  your  Lord- 
ships to  affirm  the  order  of  the  Court  of  Appeal." 
There  were  two  dissenting  opinions  filed  by  Lords 
Arkinson  and  Shaw. 

Cardiac  breakdown  due  to  heavy  work.  A  workman 
who,  while  engaged  in  work  which  was  too  heavy  for 
him,  felt  a  sudden  pain  upon  his  chest,  a  few  days  after- 
ward became  totally  incapacitated.  In  an  application 
for  compensation  the  arbitrator  found  as  a  fact  that  the 
cause  of  the  incapacity  was  a  cardiac  breakdown  due 
to  the  fact  that  the  work  in  which  the  workman  had 
been  engaged  was  too  heavy  for  him  and  that  he  was 
not  injured  by  any  sudden  jerk.  It  was,  therefore, 
held  that  the  repeated  excessive  exertion  strained  the 
workman's  heart  until  it  was  finally  overstrained. 
Under  these  circumstances,  it  was  held  that  the  in- 
capacity was  not  due  to  a  personal  injury  by  accident 
within  the  meaning  of  the  Act.  Coe  v.  Fife  Coal  Co, 
(1909),  46  Scotch  L.  R.'325;  2  B.  W.  C.  C.  8. 

Syncope.  While  a  workman  was  driving  a  cart  the 
horge  fell,  the  shaft  broke,  and  the  man  apparently 
was  thrown  out.  He  went  to  a  farm  to  borrow  another 
cart;  being  unsuccessful  in  this  he  walked  away  with 
the  horse  and  was  subsequently  found  dead  on  the 


TO   WHOM   ACT   APPLIES  61 

Accidental  bodily  injury 

road  at  the  top  of  a  hill.  The  medical  evidence  was  that 
he  died  from  syncope,  but  that  it  was  impossible  to  say 
for  certain  what  had  caused  the  syncope.  The  judge 
held  that  the  dependent  had  not  discharged  the  onus  of 
proving  that  the  death  was  caused  by  the  accident. 
This  decision  was  affirmed  on  appeal.  Powers  v.  Smith 
(1910),  3  B.  W.  C.  C.  470. 

Paralysis.  A  workman  gradually  acquired  paralysis 
of  his  right  leg  through  the  strain  of  riding  a  heavy 
carrier  tricycle  for  his  employers.  At  the  end  of  five 
years  the  condition  incapacitated  him  from  work.  It 
was  held  that  the  paralysis  was  not  a  personal  injury 
by  accident,  and  that  the  workman  was  not  entitled  to 
compensation.  Walker  v.  Hockney  Brothers  (1909),  2 
B.  W.  C.  C.  20. 

Falling  from  wagon.  A  carman  fell  from  his  van  and 
sustained  injuries.  He  died  three  weeks  later.  No 
evidence  was  produced  to  show  the  connection  be- 
tween the  accident  and  death,  the  doctor  who  had  at- 
tended the  man  being  abroad.  It  was  held  reversing 
the  decision  of  the  County  Court  judge  that  there  was 
no  evidence  that  the  death  was  due  to  the  accident. 
Honor  v.  Painter  (1911),  4  B.  W.  C.  C.  188. 

A  workman  fell  from  a  cart  and  was  injured.  He 
died  nine  days  afterward.  The  only  medical  evidence 
called  was  to  the  effect  that  there  was  no  connection 
between  the  accident  and  the  death.  The  County 
Court  judge,  however,  found  that  death  was  due  to  the 
accident  and  awarded  compensation.  It  was  held  that 
dependent  had  not  discharged  the  onus  of  proving  that 
death  was  due  to  the  accident.  Brown  v.  Kidman 
(1911),4B.W.  C.  C.  199. 

Traumatic  pneumonia.    A  healthy  and  steady  work- 


62    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

man  was  employed  to  pick  up  cotton  waste  on  the 
decks  of  a  ship  in  dock.  He  went  to  work  at  one 
o'clock  and  at  three  p.  m.  climbed  up  the  ladder  of  the 
hold,  apparently  in  great  pain,  and  he  was  sent  home. 
He  received  medical  attention  and  marks  were  found 
on  his  ribs.  Three  days  later  he  developed  pneumonia 
from  which  he  died.  The  doctor  who  attended  him 
attributed  the  pneumonia  to  the  injury  to  his  sides. 
It  was  held  that  there  was  evidence  that  the  workman 
had  died  from  personal  injury  by  accident  arising  out 
of  and  in  the  course  of  his  employment.  Lovelady  and 
Others  v.  Berrie  (1909),  2  B.  W.  C.  C.  62. 

A  workman  died  of  pneumonia.  His  dependents 
contended  that  the  pneumonia  resulted  from  lowered 
vitality  caused  by  an  accident  to  the  workman  arising 
out  of  and  in  the  course  of  his  employment.  The  only 
evidence  that  there  had  been  an  accident  consisted  of 
several  inconsistent  statements  made  by  the  workman, 
to  various  persons,  on  the  day  after  the  alleged  acci- 
dent, which  were  admitted  without  objection  being 
taken.  The  medical  referee  gave  a  report  that  the 
pneumonia  could  not  have  been  caused  by  the  alleged 
accident.  The  County  Court  judge  held  that  he  was 
not  bound  to  surrender  his  judgment  to  the  medical 
referee,  and  held  that  there  had  been  an  accident  caus- 
ing the  pneumonia,  and  so  he  awarded  compensation. 
It  was  held  on  appeal  that  there  was  no  evidence  that 
there  had  been  an  accident  arising  out  of  and  in  the 
course  of  his  employment.  Langley  v.  Reeve  (1910), 
3  B.  W.  C.  C.  175. 

Mental  shock  or  fright.  The  workman  has  been  held 
to  have  suffered  an  injury  by  witnessing  the  effects  of 
an  accident  to  a  fellow  workman  whereby  nervous 


TO   WHOM   ACT   APPLIES  63 

Accidental  bodily  injury 

shock  resulted.  Yates  v.  South  Kirhy,  Feaiherstone  cfc 
Hemsworth  Collieries  (1910),  103  L.  T.  170;  3  B.  W,  C. 
C.  418.  In  the  last-mentioned  case  the  court  said: 
"When  a  man  in  the  course  of  his  employment  goes  to 
a  place  and  sustains  a  nervous  shock  producing  physio- 
logical injury,  not  a  mere  transient  emotional  impulse, 
it  is  an  accident  arising  out  of  and  in  the  course  of  his 
emplojnnent.  It  is  something  unexpected,  no  doubt,  in 
this  sense,  that  I  do  not  suppose  the  man  thought  for  a 
moment  or  knew  when  he  was  doing  what  was  plainly 
his  duty  in  going  to  the  rescue  of  the  other  party,  that 
it  would  have  this  physiological  effect  on  his  system. 
It  had  that  effect.  There  was  no  malingering  here. 
It  was  a  perfectly  genuine  case.  Mr.  Simon  has  not 
suggested  anything  to  the  contrary;  and  I  should  not 
myself.  I  think  this  is  a  case  which  falls  within  the  Act 
of  Parhament  on  the  same  principle  and  in  the  same 
way  as  if  the  man,  on  going  to  the  rescue  of  the  other 
collier,  was  injured  by  this  fall,  or  had  stumbled  or 
fallen  on  his  way  there.  That,  undoubtedly,  would 
have  been  a  case  within  the  Act,  and  I  can  see  no  real 
difference  in  principle  (when  once  you  get  rid  of  the 
danger  of  malingering),  between  that  case  and  the  case 
where  a  physiological  injury — physiological  damage — 
is  produced  by  reason  of  what  happened  to  this  man 
when  he  went  in  the  course  of  his  duty  to  the  neigh- 
boring stall,  and  saw  what  had  happened  to  this 
workman."  In  this  case  a  man,  while  at  work,  heard 
an  outcry  from  an  adjacent  chamber.  He  found  a 
miner  severely  injured  and  so  badly  wounded  that  he 
died.  Subsequently  the  rescuer  alleged  that  he  was 
so  affected  by  the  appearance  of  peril  of  the  miner 
that  he  was  incapacitated  from  further  employment 


64    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

and  this  was  held  to  be  a  personal  injury  by  acci- 
dent.   Id. 

Insanity  indirectly  resulting  from  bodily  injury.  An 
accidental  injury  to  the  eyes  resulting  in  total  blindness, 
produced  a  condition  of  mind  upon  which  softening  of 
the  brain  supervened,  causing  death.  It  was  held  that 
death  resulted  from  the  injury.  Mitchell  v.  Grant  & 
Aldcroft  (1905),  7  W.  C.  C.  113. 

Anthrax,  from  handling  wool.  Where  a  workman  con- 
tracted the  disease  of  anthrax  by  a  germ  settling  on  his 
eye  while  sorting  wool  which  was  infected  with  anthrax, 
it  was  held  that  he  had  suffered  injury  by  accident  and 
was  entitled  to  compensation.  Brintons,  Limited,  v. 
Turvey  (1905),  A.  C.  230,  7  W.  C.  C.  1.  See  also  H.  P. 
Hood  &  Son  V.  Maryland  Gas.  Go.,  206  Mass.  223;  92 
N.  E.  329,  holding  that  contracting  glanders  from  hand- 
ling hides  was  an  accident. 

Acceleration  or  aggravation  of  pre-existing  disease. 
Acceleration  and  aggravation  of  a  pre-existing  disease 
is  an  injury  caused  by  accident.  Willoughby  v.  Great 
Western  Ry.  Go.  (1904),  6  W.  C.  C.  28.  An  injury  may 
be  caused  by  an  accident  although  no  injury  would 
have  been  thereby  suffered  but  for  the  existence  of 
disease  which  was  aggravated  by  the  accident.  Lloyd 
V.  Sugg  &  Go.  (1900),  81  L.  T.  768;  2  W.  C.  C.  5.  A 
workman,  while  employed  in  a  colliery,  was  injured  by 
a  stone  falling  on  his  knee.  The  accident  occurred  on 
a  cold  day,  and  the  applicant  took  over  two  hours  to 
get  to  his  home,  a  distance  of  a  mile  and  a  quarter. 
Chest  trouble  and  pneumonia  supervened,  and  on  an 
application  for  compensation  medical  evidence  was 
given  that  the  applicant  suffered  from  bronchitis  and 
chronic  asthma  and  was  unable  to  work.    It  was  held 


TO   WHOM   ACT   APPLIES  65 


Accidental  bodily  injury 


that  the  test  to  be  appUed  was  not  whether  the  work- 
man's diseased  condition  was  a  natural  or  probable 
result  of  the  accident,  but  whether  it  was  the  result  of 
the  accident  in  the  sense  that  it  was  occasioned  by  the 
debilitated  state  of  the  workman  immediately  after  the 
accident,  or  whether  the  accident  had  not  accelerated 
an  existing  tendency  to  disease,  or  given  life  to  certain 
latent  causes  of  disease  in  the  workman's  body.  Ystra- 
dowen  Colliery  Co.  v.  Griffiths  (1909),  100  L.  T.  869;  2 
B.  W.  C.  C.  357. 

"An  injury  which  might  naturally  produce  death  in 
a  person  of  a  certain  temperament  or  state  of  health  is 
the  cause  of  his  death,  if  he  dies  by  reason  of  it,  even 
if  he  would  not  have  died  if  his  temperament  or  pre- 
vious health  had  been  different,  and  this  is  so,  as  well 
when  death  comes  through  the  medium  of  disease 
directly  induced  by  the  injury,  as  when  the  injury 
immediately  interrupts  the  vital  processes."  Freeman 
V.  Mercantile  Mut.  Ace.  Assn.,  156  Mass.  351. 

Inhaling  poisonous  gases;  accelerating  disease  of  long 
standing.  A  workman  contracted  the  disease  of  en- 
teritis from  inhahng  sewer  gas  in  the  course  of  his  em- 
ployment. The  result  was  to  accelerate  long  standing 
heart  disease,  and  incapacitate  the  man  from  work  before 
the  time  at  which  such  heart  disease  would  otherwise 
have  incapacitated  him.  It  was  held  that  this  was  not 
a  personal  injury  by  accident  within  the  meaning  of 
the  Compensation  Act.  Broderick  v.  London  County 
Council  (1908),  1  B.  W.  C.  C.  219. 

Gas  'poisoning.    A  caretaker  of  an  empty  house  was 

told  to  lay  open  the  drains,  manholes  and  cesspools  for 

inspection.     He  did  this  on  several  occasions  in  July, 

and  becoming  ill,  died  in  the  following  October  from 

5 


66     Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

**  poisoning  contracted  from  the  drains.  The  County 
Court  judge  found  that  it  was  not  possible  to  specify 
the  date  when  he  contracted  the  disease.  It  was  held 
that  the  workman  had  not  died  from  a  personal  injury 
by  accident  within  the  meaning  of  the  Act;  that  a 
disease,  although  arising  out  of  and  in  the  course  of  the 
employment  is  not  a  personal  injury  by  accident,  if  it 
cannot  be  shown  to  have  been  contracted  at  a  par- 
ticular time  and  place.  Eke  v.  Sir  William  Hart  Dyke 
(1910),  3  B.  W.  C.  C.  482.  In  the  last-mentioned  case 
the  court  reviewed  a  large  number  of  decisions  on  the 
question  of  accidents  by  disease,  and  stated:  "That  a 
mere  disease  which  you  could  not  say  was  contracted 
at  a  particular  time,  and  at  a  particular  place,  by  a 
particular  accident,  or  accidents,  entitles  a  man  to 
compensation."  A  gas  fitter  inhaled  some  coal  gas, 
and  three  days  later  suffered  from  paralysis  due  to 
cerebral  hemorrhage,  from  which  he  died  shortly  after. 
Seven  months  previously  he  had  had  a  transient  at- 
tack of  paralysis  from  the  same  cause.  On  his  death 
his  widow  contended  that  the  death  was  due  to  the 
gas  poisoning,  but  the  County  Court  judge  decided 
against  her.  On  appeal  it  was  held  that  it  was  a  ques- 
tion of  fact  for  the  County  Court  judge  to  decide. 
Dean  v.  London  &  North  Western  Railway  Co.  (1910), 
3  B.  W.  C.  C.  351. 

Enteritis  from  inhaling  noxious  gas.  A  workman 
engaged  in  the  London  sewers  contracted  the  disease 
of  enteritis  from  inhaling  sewer  gas.  The  Court  of 
Appeal  held  that  this  was  not  a  personal  injury  by 
accident.  Broderick  v.  London  County  Council  (1908), 
2  K.  B.  807;  1  B.  W.  C.  C.  219.  A  similar  decision  was 
made  in  the  case  of  Eke  v.  Hart-Dyke  (1910),  2  K.  B. 


TO   WHOM   ACT   APPLIES  67 

Accidental  bodily  injury 

677;  3  B.  W.  C.  C.  482.  In  the  last-mentioned  case  the 
caretaker  of  an  empty  house  was  told  to  lay  open  the 
drains,  manholes  and  cesspools  for  inspection.  He  did 
this  on  several  occasions  in  July,  and  becoming  ill, 
died  in  the  following  October  from  poisoning  contracted 
from  the  drains.  The  County  Court  judge  found  that 
it  was  not  possible  to  specify  the  date  when  he  con- 
tracted the  disease.  It  was  held  that  the  workman  had 
not  died  from  personal  injury  by  accident  within  the 
meaning  of  the  Act. 

Pneumonia  from  inhaling  gas  in  mine  from  explosion. 
A  miner  employed  in  a  mine  died  from  pneumonia  caused 
by  the  inhalation  of  gas  generated  by  the  explosion.  It 
was  held  that  the  death  was  the  result  of  the  accident 
within  the  meaning  of  the  Act.  Kelly  v.  Auchenlea 
Coal  Co.  (1911),  48  Scotch  L.  R.  768;  4  B.  W.  C.  C.  417. 

Anaesthetic  administered  for  purpose  of  operation.  A 
workman  has  been  held  to  have  suffered  an  accidental 
injury  where  disability  resulted  from  an  anaesthetic 
administered  for  the  purpose  of  an  operation.  Shirt  v. 
Calico  Printers'  Association  (1909),  2  K.  B.  51;  2  B.  W. 
C.  C.  342. 

Bite  of  animal.  A  workman  has  been  held  to  have 
suffered  an  accidental  injury  by  the  bite  or  attack  of 
an  animal.  Hapelman  v.  Poole  (1908),  25  T.  L.  R.  155; 
2  B.  W.  C.  C.  48. 

Lead  poisoning.  Lead  poisoning  is  not  an  accident. 
Steel  V.  Cammell,  Laird  &  Co.  (1905),  7  W.  C.  C.  9. 

Where  an  applicant  for  compensation  contended  that 
the  death  of  the  workman  had  been  caused  by  lead 
poisoning,  or  its  consequences,  and  it  appeared  in  this 
particular  case  that  the  immediate  cause  was  granular 
kidney,  which  might  have  been  brought  about  by  gout, 


68    Bradbury's  workmen's  compensation  law 

Accidental  bodily  injury 

alcoholism,  heart-pressure  or  other  complaints,  it  was 
held  that  the  claimant  did  not  maintain  the  onus  of 
proving  that  the  death  was  caused  by  lead  posioning. 
Haylett  v.  Vigor  &  Co.  (1908),  1  B.  W.  C.  C.  282. 

An  attack  of  colic  through  lead  poisoning  is  not  an 
accident.    Williams  v.  Duncan  (1898),  1  W.  C.  C.  123. 

Opening  old  wound  by  strain;  septic  poisoning.  A 
workman  who  had  undergone  an  operation  returned 
to  work  before  the  operation  wound  was  completely 
healed,  with  instructions  not  to  strain  himself.  He 
worked  at  the  lever  of  a  machine.  A  fellow  workman, 
noticing  that  the  machine  was  stopped,  looked  for  the 
man  and  saw  that  he  was  talking  to  the  foreman  some 
yards  away.  It  was  then  seen  that  blood  was  flowing 
freely  from  the  operation  wound  and  soaking  into  his 
boots.  Septic  poison  followed,  and  the  man  died.  In 
the  absence  of  direct  evidence  as  to  what  had  happened 
the  County  Court  judge  drew  the  inference  that  the 
wound  had  burst  open  through  the  strain  of  working 
the  lever,  and  awarded  compensation  to  the  depend- 
ents. It  was  held  on  appeal  that  there  was  evidence 
from  which  the  County  Court  judge  could  draw  this 
inference.  Groves  v.  Burroughes  &  Watts  (1911),  4  B. 
W.  C.  C.  185. 

Germ  or  poison  into  system  through  break  in  skin. 
A  workman  has  been  held  to  have  suffered  an  injury  by 
a  germ  or  poison  getting  into  the  system  through  a  break 
in  the  skin.  Higgins  v.  Campbell  &  Harrison  and  Turvey 
V.  Brintons  Limited  (1904),  1  K.  B.  328;  6  W.  C.  C.  1; 
the  latter  affirmed  by  the  House  of  Lords  (1905),  A.  C. 
230;  7  W.  C.  C.  1. 

A  piece  of  coal  digging  its  way  under  the  skin  of  the 
knee  of  a  coal  miner,  who  very  frequently  has  to  work 


TO  WHOM  ACT  APPLIES  69 

Accidental  bodily  injury 

on  his  knees,  is  an  accident.  Thompson  v.  Ashington 
Coal  Co.  (1901),  3  W.  C.  C.  21. 

Blood  poisoning  through  use  of  a  hypodermic  needle 
is  an  accident.  Bailey  v.  Interstate  Cas.  Co.,  8  App. 
Div.  127;  40  N.  Y.  Supp.  513,  aff'd,  158  N.  Y.  723;  53 
N.  E.  1123. 

Poison  entering  through  blister  on  finger.  An  injury 
caused  to  one  of  an  imperfect  physical  condition  while 
working  in  the  ordinary  way  with  the  usual  materials 
and  appliances  is  not  an  injury  by  accident.  Therefore, 
where  an  engine  fitter  was  fixing  steampipe  joints  for 
which  purpose  red  lead  was  used,  and  in  consequence  of 
a  blister  on  his  finger  the  red  lead  poisoned  the  finger, 
it  was  held  that  the  injury  was  not  caused  by  an  acci- 
dent. Walker  v.  Lilleshall  Coal  Co.  (1900),  81  L.  T. 
769;  2  W.  C.  C.  7.  If  a  germ  causes  a  disease  without 
the  necessity  of  an  abrasion  of  the  skin  the  general  rule 
is  that  the  result  is  a  disease  and  not  an  accidental  in- 
jury. Bacon  v.  U.  S.  Mutual  Accident  Assn.,  123  N.  Y. 
304. 

Dermatitis  caused  by  using  caustic  soda  without  gloves. 
Dermatitis  brought  on  by  washing  out  ink  cans  with  a 
solution  of  caustic  soda  without  the  use  of  proper 
gloves  is  not  an  accident.  Cheek  v.  Harmsworth  Bros. 
(1901),  4  W.  C.  C.  3. 

Injury  to  hands  of  dish  washer  by  caustic  soda.  A 
workman  has  been  held  to  have  suffered  an  injury  by 
washing  crockery  in  hot  water  with  soft  soap  and  caustic 
soda  by  a  man  who,  unknown  to  himself,  had  a  pe- 
culiarly sensitive  skin.  Dotzauer  v.  Strand  Palace  Hotel 
(1910),  3  B.  W.  C.  C.  387.  In  the  last-mentioned  case 
a  scullion  in  a  hotel  was  the  subject  of  a  disease  affect- 
ing his  skin  and  making  it  abnormally  sensitive.    On 


70    Bradbury's  workmen's  compensation  law 


Arising  out  of  and  in  the  course  of  the  employment 

the  day  he  commenced  work  he  washed  up  crockery  for 
a  number  of  hours  in  a  tank  containing  hot  water,  soft 
soap  and  caustic  soda.  His  hands  became  greatly  in- 
flamed, his  nails  came  off,  and  he  was  disabled  for  four 
and  a  half  months.  The  Court  of  Appeal  of  England 
held  that  this  was  an  accident  and  the  mere  circum- 
stance that  a  perfectly  healthy  man  would  not  have 
met  with  it  was  no  answer  at  all. 

Erysipelas  from  wound.  There  was  a  dispute  between 
the  medical  experts  as  to  whether  or  not  a  wound  in 
the  hand  on  April  17th  could  cause  erysipelas  of  the 
face  on  July  7th,  following.  The  medical  referee  was 
asked  the  abstract  question  as  to  whether  or  not  the 
diseased  organisms  could  have  been  latent  for  so  long  a 
time.  He  said  it  was  possible  that  the  organisms  might 
have  lain  dormant  and  subsequently  sprung  to  life  if 
the  injured  workman  was  in  a  devitalized  condition. 
The  County  Court  judge  held  that  the  deceased  man 
died  from  personal  injury  by  accident,  and  the  Appellate 
Court  held  that  there  was  no  evidence  to  justify  the 
finding.  Hugo  v.  H.  W.  Larkins  &  Co.  (1910),  3  B.  W. 
C.  C.  228. 

Tight  hoots  causing  hlood  poisoning.  Where  a  work- 
man was  incapacitated  by  reason  of  the  pressure  of  a 
boot  which  had  become  too  tight  for  him  and  that  his 
foot  became  sore  and  blood  poisoning  set  in,  it  was  held 
that  the  accident  did  not  arise  out  of  the  employment 
and  compensation  was  refused.  White  v.  Sheepwash 
(1910),  3  B.  W.  C.  C.  382. 

5.  "  Arising  out  of  and  in  the  course  of  the  employ- 
ment." 
All  the  compensation  acts  have  provisions  to  the 


TO  WHOM  ACT  APPLIES  71 

Arising  out  of  and  in  the  course  of  the  employment 

effect  that  an  employer  shall  be  liable  for  an  injury  to 
an  employe  only  when  the  accident  arose  out  of  and  in 
the  course  of  the  workman's  employment.  Some  of 
them  express  this  condition  in  the  words  forming  the 
heading  of  this  paragraph.  Others  express  it  in  dif- 
ferent phraseology.  An  examination  of  the  reports 
shows  that  this  phrase  has  been  the  subject  of  more 
discussion  and  judicial  interpretation  than  any  other 
single  portion  of  the  British  Compensation  Act.  The 
phrase  has  a  double  meaning.  Or  more  properly  speak- 
ing there  are  two  conditions  attached  to  it.  The  acci- 
dent must  "arise  out  of"  the  employment,  as  well 
as  "in  the  course  of"  the  employment.  Thus  where  a 
workman  during  the  course  of  the  employment  does 
something  entirely  foreign  to  the  work  which  he  is 
employed  to  do  (playing  a  practical  joke,  for  example) 
whereby  he  is  injured,  this  accident  could  be  said  to 
have  occurred  "during  the  course  of"  the  employment, 
but  it  could  not  be  said  to  arise  "out  of"  the  employ- 
ment because  the  workman  was  not  doing  anything 
which  he  was  employed  to  do  when  the  accident  hap- 
pened. Several  variations  of  this  condition  will  be 
found  in  the  pages  following  in  this  subdivision.  The 
questions  of  when  a  man's  work  begins  and  when  it 
terminates  for  the  purpose  of  awarding  compensation 
for  injuries  have  also  been  the  subject  of  much  dis- 
cussion. As  a  general  proposition  the  time  while  a  man 
is  going  to  and  from  his  work  is  no  part  of  his  employ- 
ment. But  there  are  enough  exceptions  to  this  prin- 
ciple to  make  it  a  pregnant  source  of  controversy,  as 
the  cases  cited  hereafter  in  this  subdivision  will  demon- 
strate. The  other  subjects  ^vill  be  found  under  their  ap- 
propriate topical  headings,  indicated  by  words  in  italics. 


72    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

The  expression  "in  the  course  of  the  employment" 
points  to  the  time,  place  and  circmnstances  under 
which  the  accident  takes  place;  it  occurs  in  the  course 
of  employment  if  it  occurs  while  he  is  doing  what  a 
man  so  employed  may  reasonably  do  within  a  time 
during  which  he  is  employed,  and  at  a  place  where  he 
may  reasonably  be  during  that  time.  Fitzgerald  v. 
Clarke  &  Son  (1908),  2  K.  B.  796;  1  B.  W.  C.  C.  197; 
Moore  v.  Manchester  Liners  (1910),  A.  C.  498;  3  B.  W.  C. 
C.  527.  In  the  last-mentioned  case  a  fireman  on  board  a 
steamship  lying  off  South  Brooklyn  went  on  shore  for 
the  purpose  of  obtaining  for  himself  certain  neces- 
saries which  were  not  provided  by  the  owners  of  the 
ship.  On  returning  to  the  ship  he  fell  off  a  ladder,  which 
was  the  only  means  of  access  from  the  dock  to  the  ship, 
and  was  drowned.  It  was  held  by  the  House  of  Lords 
that  the  accident  arose  out  of  and  in  the  course  of  the 
fireman's  employment  and  therefore  that  the  widow 
was  entitled  to  compensation. 

''The  only  way  to  construe  the  Act  is  to  read  it 
fairly,  taking  the  words  in  their  common  and  ordinary 
signification,  and  *  *  *  the  court  ought  not  to  strain 
the  language  in  order  to  bring  in  or  to  exclude  any 
particular  case,  however  arbitrary  or  unscientific  the 
line  of  demarcation  drawn  by  the  Act  may  seem  to 
be."  Hoddinott  v.  Newton  Chambers  &  Co.  (1900),  3 
W.  C.  C.  74. 

Going  to  and  from  place  of  employment.  As  a  general 
rule  a  man's  employment  does  not  begin  until  he  has 
reached  the  place  where  he  has  to  work,  or  the  scene  of 
his  duty,  and  it  does  not  continue  after  he  has  left. 
The  periods  of  going  and  returning  are  generally  ex- 
cluded.   Benson  v.  Lancashire  and  Yorkshire  Rail.  Co. 


TO  WHOM  ACT  APPLIES  73 

Arising  out  of  and  in  the  course  of  the  employment 

(1904),  1  K.  B.  242;  6  W.  C.  C.  20;  Jackson  v.  General 
Steam  Fishing  Co.  (1909),  A.  C.  523;  2  B.  W.  C.  C.  56; 
Walters  v.  Stavely  Coal  &  Iron  Co.  (1911),  105  L.  T.  119; 
4  B.  W.  C.  C.  303;  Gilmour  v.  Dorman,  Long  &  Co. 
(1911),  105  L.  T.  54;  4  B.  W.  C.  C.  279. 

In  the  case  of  Jackson  v.  General  Steam  Fishing  Co. 
(1909),  A.  C.  523;  2  B.  W.  C.  C.  56,  a  workman  was 
employed  to  watch  trawlers  as  they  lay  in  a  harbor. 
He  was  on  duty  for  twenty-five  hours,  during  which 
time  he  had  to  provide  his  own  food,  and  in  connection 
with  his  duties  it  was  occasionally  necessary  for  him 
to  be  on  the  quay  to  which  the  trawlers  were  moored. 
In  the  course  of  his  watch  he  left  the  boats  and  went 
to  a  hotel  near  at  hand  for  some  refreshment.  He  was 
absent  a  very  short  time,  had  returned  to  the  quay, 
and  while  descending  a  fixed  ladder  attached  to  the 
quay  to  go  on  board  one  of  the  trawlers,  he  fell  into  the 
water  and  was  drowned.  It  was  held  by  the  House  of 
Lords  that  the  accident  arose  out  of  and  in  the  course 
of  the  man's  employment  and  that  he  was  entitled  to 
compensation. 

In  the  case  of  Walters  v.  Staveley  Coal  Co.  (1911),  105 
L.  T.  119;  4  B.  W.  C.  C.  303,  a  miner,  proceeding  to  his 
work  along  a  footpath  prepared  by  the  employers  for 
the  workmen's  convenience,  slipped  on  some  steps  at  a 
point  about  a  mile  away  from  the  place  of  employment. 
There  was  evidence  that  the  employers  knew  the  steps 
were  not  safe.  It  was  held  that  the  accident  did  not 
arise  in  the  course  of  the  employment.  In  the  last- 
mentioned  case.  Lord  Shaw,  in  a  concurring  opinion 
said:  ''In  this  case  there  was  a  circuitous  pubhc  road, 
and  there  was  a  short  cut  from  one  part  of  that  public 
road  to  another.    It  was  optional  to  the  workman  to 


74     Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

take  the  short  cut  or  not  to  take  it.  Only  when  the 
point  was  reached  where  the  short  cut  was  at  an  end  the 
workman  had  gone  either  by  it  or  by  the  circuitous 
pubhc  road,  and  not  till  then,  did  he  reach  the  place 
which  was  the  place  of  his  employment.  There  was  no 
contract  or  obligation,  direct  or  indirect,  on  his  part, 
that  he  should  use  the  short  cut  or  the  steps  conven- 
iently provided  there.  He  might  reach  the  place  of  his 
employment  in  any  manner  he  liked.  It  was  not  arising 
out  of  his  employment  and  not  in  the  course  of  his  em- 
ployment that  he  met  with  his  accident.  My  Lords,  I 
fear  to  make  any  general  proposition  in  these  cases 
when  I  see  the  use  that  is  made  by  ingenious  and  able 
counsel  of  propositions  laid  down  in  this  or  any  other 
court.  I  would  venture,  however,  to  say  one  phil- 
osophical thing,  which  is  that  analogies  in  matters  of 
fact  nearly  always  fail,  and  I  think  it  is  a  dangerous 
thing  in  the  sphere  of  law  to  conjure  out  of  analogies  a 
principle  or  proposition  arising  upon  judicial  dicta  which 
are  in  any  respect  in  conflict,  or  to  be  cited  as  in  con- 
flict, with  the  clear  propositions  and  text  of  a  modern 
statute." 

An  accident  which  occurs  when  a  man  is  passing  along 
a  public  highway  on  his  way  to  the  place  where  he 
works,  is  not  one  arising  out  of  and  in  the  course  of  his 
employment.  Holness  v.  Mackay  &  Davis  (1899),  80 
L.  T.  831 ;  1  W.  C.  C.  13.  A  man  who  was  employed  as 
a  shepherd  was  on  his  way  to  the  place  where  he  was  to 
be  employed,  in  a  wagon  furnished  by  his  employer, 
and  when  at  a  distance  of  forty  yards  from  the  cottage 
which  he  was  to  occupy  the  wagon  was  suddenly  jerked 
and  the  shepherd  thrown  off,  receiving  injuries  which 
proved  fatal.    It  was  held  that  the  injury  did  not  arise 


TO   WHOM   ACT   APPLIES  75 

Arising  out  of  and  in  the  course  of  the  employment 

out  of  and  in  the  course  of  the  employment,  as  the 
employment  had  not  commenced.  Whitbread  v.  Arnold 
(1908),  99  L.  T.  103;  1  B.  W.  C.  C.  317.  In  the  case  of 
Gilmour  v.  Dorman,  Long  &  Co.  (1911),  105  L.  T.  54; 
4  B.  W.  C.  C.  279,  a  workman  was  accustomed  to  go  to 
his  work  by  a  footpath  which  ran  over  vacant  land  be- 
longing to  his  employers,  and  afterwards  along  a  rail- 
way line,  to  the  factory  where  he  was  employed.  While 
on  his  way  to  work  he  was  injured  by  slipping  on  some 
ice  on  the  vacant  land,  a  quarter  of  a  mile  from  the 
place  where  he  had  to  work.  It  was  held  by  the  Court 
of  Appeal  in  England  that  the  accident  did  not  arise  in 
the  course  of  his  employment.  Although  no  hard  and 
fast  rule  can  be  laid  down  on  the  subject  it  may  gen- 
erally be  supposed  that  so  long  as  the  workman  is  law- 
fully upon  premises  under  the  control  of  his  employers, 
so  that  a  duty  exists  in  respect  thereof  from  them  to 
him,  his  employment  will  continue.  Thus,  it  has  been 
held  that  where  a  workman  is  injured  on  the  ground 
floor  of  the  factory  of  his  employer  while  going  to  his 
work  on  an  upper  floor,  that  this  is  in  the  course  of 
his  employment  and  he  is  entitled  to  compensation. 
Holness  v.  Mackay  &  Dams  (1899),  80  L.  T.  831;  1  W. 
C.  C.  13.  A  workman  had  to  come  to  the  place  of  his 
work  by  a  train  arriving  twenty  minutes  before  work 
actually  commenced,  and  it  was  their  practice,  recog- 
nized by  the  employers,  to  deposit  their  tickets  on  the 
ledge  of  the  office  pigeonhole,  and  then,  if  so  minded, 
to  breakfast  at  a  mess  cabin  provided  by  the  employers. 
A  workman,  while  depositing  his  ticket,  was  injured 
by  falling  into  an  excavation.  It  was  held  that  he  was 
entitled  to  compensation.  Sharp  v.  Johnson  &  Co. 
(1905),  92  L.  T.  675;  7  W.  C.  C.  28.     A  miner  was 


76    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

injured  on  his  way  to  work.  He  was  on  his  employers' 
land  but  had  not  reached  the  point  at  which  his  duties 
commenced,  and  the  accident  happened  twenty  min- 
utes before  the  hour  at  which  work  started.  The 
arbitrator  decided  that  the  accident  did  not  arise 
out  of  and  in  the  course  of  the  employment,  and  it  was 
held  by  the  Court  of  Session  of  Scotland  that  there  was 
evidence  on  which  the  arbitrator  was  justified  in  so 
deciding.  Anderson  v.  Fife  Coal  Co.  (1909),  47  Scotch 
L.  R.  5;  3  B.  W.  C.  C.  539.  A  miner  descended  into 
his  pit  by  the  cage  and  got  out  at  the  wrong  level.  He 
then  descended  by  a  shaft  near  the  cage,  and  instead  of 
proceeding  to  his  work,  he  walked  to  a  place  some  700 
feet  along  a  road,  which  by  its  nature  was  very  different 
from  his  proper  road.  At  this  point  he  was  found  dead, 
having  been  scalded  to  death  by  the  steam  which 
escaped  from  the  colliery  engines.  There  was  no  ev- 
idence to  show  why  he  went  there.  It  was  held  that  the 
accident  arose  out  of  and  in  the  course  of  the  employ- 
ment. Sneddon  and  others  v.  Greenfield  Coal  and  Brick 
Co.  (1910),  47  Scotch  L.  R.  337;  3  B.  W.  C.  C.  557.  A 
collier  was  injured  by  a  gate  swinging  back  on  him. 
The  land  on  both  sides  of  the  gates  belonged  to  his 
employers  and  the  gates  were  about  150  yards  from  the 
lamp-room  to  which  the  collier  was  first  going  on  his 
way  to  work.  On  a  claim  for  compensation  the  County 
Court  judge  held  that  the  workman  was  entitled  to 
compensation  and  that  the  accident  arose  out  of  and  in 
the  course  of  the  employment.  It  was  held  on  appeal 
that  there  was  evidence  to  support  this  finding.  Hos- 
kins  V.  J.  Lancaster  (1910),  3  B.  W.  C.  C.  476.  A 
miner's  employment  has  commenced  when  he  has  ob- 
tained his  pit  lamp  and  his  tallies  and  is  waiting  at 


TO   WHOM   ACT  APPLIES  77 

Arising  out  of  and  in  the  course  of  the  employment 

the  pit  brow  to  descend.  Fitzpatrick  v.  Hindley  Field 
Colliery  Co.  (1901),  3  W.  C.  C.  37;  4  W.  C.  C.  7.  Where 
an  engine  driver  arrived  on  the  premises  where  he  was 
to  start  work  an  hour  and  a  quarter  before  it  was  nec- 
essary for  him  to  be  there  and  in  crossing  some  tracks 
in  returning  from  a  place  where  he  had  gone  for  his  own 
purposes  was  hit  by  a  train  and  killed,  it  was  held  that 
the  accident  did  not  arise  out  of  the  employment. 
Benson  v.  Lancashire  &  Yorkshire  Ry.  Co.  (1903),  89 
L.  T.  715;  6  W.  C.  C.  20.  When  an  employe  arrives  at 
the  place  of  work  shortly  before  the  regular  time  to 
begin  work  and  is  doing  anything  relating  to  the  em- 
ployment and  is  injured,  he  is  entitled  to  compensation. 
Sharp  V.  Johnson  &  Co.  (1905),  92  L.  T.  675;  7  W.  C.  C. 
28. 

A  workman  was  engaged  to  load  a  van,  and  was 
promised  employment  in  unloading  it  at  another  place 
if  he  would  be  there  by  the  time  the  van  arrived.  He 
agreed  to  be  there,  and  started  on  his  bicycle,  but  on 
the  way  met  with  an  accident.  The  County  Court 
judge  held  that  the  employment  was  continuous  and 
awarded  compensation.  On  appeal  it  was  held  that 
there  were  two  separate  and  distinct  employments;  one 
had  ended  and  the  other  had  not  begun.  The  accident, 
therefore,  did  not  arise  out  of  and  in  the  course  of  the 
employment.  Perry  v.  The  Anglo-American  Decorating 
Co.  (1910),  3  B.  W.  C.  C.  310. 

The  employment  of  a  workman  is  not  limited  to  the 
moment  when  he  reaches  the  place  where  he  is  to  be- 
gin work,  and  to  the  moment  when  he  ceases  that  work. 
Where,  therefore,  a  workman,  when  his  work  for  the 
day  was  over,  without  loitering,  and  with  all  reason- 
able speed,  left  the  place  where  he  was  working  by  the 


78     Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

accustomed  and  permitted  route  on  the  way  to  his 
home,  and  was  injured  while  so  doing,  it  was  held  that 
the  accident  arose  in  the  course  of  the  man's  employ- 
ment and  he  was  entitled  to  compensation.  Gane  v. 
Norton  Hill  Colliery  Company  (1909),  100  L.  T.  979;  2 
B.  W.  C.  C.  42.  In  the  last-mentioned  case  the  injured 
workman  was  on  his  way  home,  after  having  completed 
his  day's  work.  There  were  three  ways  he  could  go 
over  the  defendant's  premises.  No  directions  were 
given  to  the  man  as  to  which  way  he  should  or  should 
not  go.  The  shortest  way  and  the  one  used  by  most  of 
the  men  was  over  certain  parts  of  the  employer's  prem- 
ises, through  a  doorway,  down  some  steps  and  across 
some  railway  lines,  which  were  on  the  premises  and 
under  the  control  of  the  employers.  In  going  in  this 
way  the  workman  was  passing  under  some  trucks  which 
had  just  been  safely  passed  under  by  other  workmen 
going  in  the  same  direction,  and  while  doing  so  the 
trucks  moved,  passing  over  his  legs  and  crushing  both 
of  them,  requiring  their  amputation.  It  was  held  that 
the  accident  arose  out  of  and  in  the  course  of  the  work- 
man's employment,  and  that  he  was  entitled  to  com- 
pensation. In  the  last-mentioned  case  the  court  said 
that  it  did  not  wish  to  lend  any  color  to  the  suggestion 
that  a  workman  is  entitled  to  the  protection  of  the  act 
during  the  whole  period  necessary  to  get  to  his  own 
home  from  the  place  where  he  is  employed.  But  under 
the  peculiar  circumstances  of  that  case,  it  was  held 
that  the  workman  was  entitled  to  compensation. 

A  miner  who  was  making  his  way  home  from  the  pit, 
instead  of  taking  the  recognized  exit  provided  by  the 
mine  owners  for  the  use  of  their  man,  crossed  a  gang- 
way on  to  a  dirt  bin  or  waste  heap,  down  which  he  pro- 


TO   WHOM   ACT   APPLIES  79 

Arising  out  of  and  in  the  course  of  the  employment 

ceeded  by  a  steep  and  rough,  and  in  wet  weather  very 
sHppery  track,  not  formed  in  any  way  but  worn  down 
into  uneven  steps.  Near  the  foot  of  the  slope  and 
while  still  on  his  employers'  premises,  he  slipped  and 
fell  and  was  fatally  injured.  The  use  of  this  route  was 
neither  sanctioned  nor  expressly  prohibited  by  the  own- 
ers of  the  mine,  and  involved,  as  the  deceased  must 
have  known,  considerable  danger.  On  these  facts  it 
was  held  that  there  was  evidence  to  support  the  ar- 
bitrators' ruling  that  the  accident  did  not  arise  out  of 
and  in  the  course  of  his  employment.  Hendry  v.  The 
United  Collienes  (1910),  47  Scotch  L.  R.  635;  3  B.  W. 
C.  C.  567.  "While  the  workman  is  leaving  the  place 
where  he  is  employed,  I  think  that,  for  the  purposes  of 
this  Act,  his  employment  would  continue.  But  though 
his  employment  may  continue  for  an  interval  after  he 
has  actually  ceased  working,  yet  there  must  come  a 
time  when  he  can  no  longer  be  said  to  be  engaged  in  his 
employment  in  such  a  way  that  an  accident  happening 
to  him  can  be  said  to  have  arisen  out  of  and  in  the 
course  of  his  employment.  There  must  be  a  line  be- 
yond which  the  liability  of  the  employer  cannot  con- 
tinue, and  the  question  where  that  line  is  to  be  drawn 
in  each  case  is  a  question  of  fact."  Smith  v.  South  Nor- 
manton  Colliery  Co.  (1903),  1  K.  B.  204;  5  W.  C.  C.  14. 
Where  a  workman  was  killed  on  his  employer's  premises 
while  leaving  them  by  a  short  cut  which  he  had  never 
used  before,  but  which  other  men  were  in  the  habit  of 
using,  it  was  held  that  his  dependents  were  entitled  to 
compensation.  McKee  v.  Great  Northern  Railway  Co. 
(1908),  42  Irish  L.  T.  132;  1  B.  W.  C.  C.  165.  A  fu-eman 
in  the  service  of  a  railway  company  was  traveling  to  his 
home  on  one  of  the  company's  trains  after  he  had 


80    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

finished  his  work,  as  he  had  a  right  to  do,  and  he  was 
last  seen  with  a  basket  in  his  hands  and  his  face  towards 
the  door;  a  crash  was  heard  and  he  disappeared.  He 
was  injured  so  badly  that  he  died.  It  was  held  that 
there  was  evidence  that  the  accident  arose  out  of  and 
in  the  course  of  his  employment.  Pomfret  v.  Lancashire 
&  Yorkshire  Ry.  Co.  (1903),  89  L.  T.  000;  5  W.  C.  C.  22. 
Where  a  workman,  having  finished  his  day's  work,  w^s 
walking  home  along  a  private  branch  railway  leading 
from  his  employer's  colliery  to  the  main  line  of  a  railway 
company,  and  was  knocked  down  by  an  engine  of  his 
employers  230  yards  from  the  place  where  he  had  been 
working,  it  was  held  that  he  was  not  entitled  to  com- 
pensation. Caton  V.  Summerlee  &  Mossend  Iron  Co, 
(1902),  39  Scotch  L.  R.  762.  Where  the  employer 
contracts,  either  expressly  or  impliedly,  to  provide  free 
carriage  by  train  for  the  workman  to  his  place  of  em- 
ployment, the  employment  will  be  held  to  begin  when 
the  workman  enters  the  train,  and  therefore  in  case  of 
an  accident,  the  workman  is  entitled  to  compensation. 
Holmes  v.  G.  N.  Rail  Co.  (1900),  2  Q.  B.  409;  2  W.  C.  C. 
19.  In  such  a  case  the  employment  may  even  begin  or 
continue  while  the  workman  is  waiting  on  the  platform 
for  the  train  so  provided.  Cremins  v.  Guest,  Keen  and 
Nettlefold  (1908),  1  K.  B.  469;  1  B.  W.  C.  C.  160. 
Where  the  giving  to  the  workman  by  the  employer  of 
a  return  railway  ticket  was  merely  a  gratuitous  conces- 
sion by  the  employer  and  the  workman  was  in  no  way 
obligated  to  go  or  return  from  work  on  the  train,  it  was 
held  that  an  accident  while  the  workman  was  on  the 
way  to  the  place  of  employment,  but  before  he  reached 
the  same,  did  not  arise  out  of  and  in  the  course  of  the 
employment.    Nolan  v.  Porter  &  Sons  (1909),  2  B.  W. 


TO   WHOM   ACT  APPLIES  81 

Arising  out  of  and  in  the  course  of  the  employment 

C.  C.  106.  Where  the  employer  furnished  a  train  to 
carry  the  workmen  to  and  from  their  work,  but  did  not 
require  that  they  should  ride  on  this  train,  it  was  held 
that  a  workman  about  to  enter  the  train  who  was 
pushed  ofif  the  platform  and  was  killed  during  the  rush 
of  workmen,  had  suffered  an  accident  while  the  rela- 
tion of  master  and  servant  existed,  and  that  his  widow 
as  a  dependent  was  entitled  to  recover  compensation. 
Cremins  v.  Guest,  Keen  &  Nettlefold  (1907),  1  B.  W.  C. 
C.  160.  A  colliery  company  provided  a  train  on  their 
railway  to  take  the  workmen  from  the  colliery  to  their 
homes.  A  collier  on  reaching  the  point  nearest  his 
home,  three-quarters  of  a  mile  from  the  colliery,  met 
with  an  accident,  while  alighting  from  the  train.  It 
was  held  that  the  accident  did  not  arise  out  of  and  in 
the  course  of  the  employment.  Davies  v.  Rhymney  Iron 
Co.,  2  W.  C.  C.  22.  An  engine  cleaner  who  lived  at 
King's  Cross,  was  carried  free  by  his  employers,  a  rail- 
way company,  to  Hornsey.  While  crossing  the  tracks 
for  the  purpose  of  getting  to  the  place  where  he  worked, 
and  shortly  before  the  time  for  conmiencing  work,  he 
was  knocked  down  by  a  passing  train  and  killed.  It  was 
held  that  the  employment  conmienced  when  he  en- 
tered the  train  at  King's  Cross  and  that  the  accident 
arose  out  of  and  in  the  course  of  his  employment. 
Holmes  v.  Great  Northern  Ry.  Co.,  2  W.  C.  C.  19.  A 
workman  employed  by  a  farmer,  returning  home  tem- 
porarily during  a  storm,  was  injured  while  crossing  a 
plank  laid  over  a  dyke,  and  it  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  his  employment. 
Taylor  v.  Jones  (1907),  1  B.  W.  C.  C.  3. 

A  fruit  picker  on  piecework  was  told  to  stop  what  she 
was  doing  and  go  to  work  at  another  part  of  the  farm. 
6 


82    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

While  proceeding  as  instructed  she  met  with  an  acci- 
dent and  it  was  held  that  it  arose  out  of  the  employ- 
ment.   Jesson  V.  Bath  (1902),  4  W.  C.  C.  9. 

A  club  servant  left  the  club  for  his  own  purposes,  re- 
turning about  midnight  by  climbing  through  a  window, 
and  while  so  doing  he  was  injured.  It  was  held  that  the 
accident  did  not  arise  out  of  and  in  the  course  of  his 
employment.  Watson  v.  Sherwood  (1909),  2  B.  W.  C. 
C.  462. 

A  workman  employed  by  colliery  owners  went  home 
to  dinner  in  the  middle  of  the  day  by  the  accustomed 
and  permitted  route,  which  was  on  the  land  of  his  em- 
ployers; being  overtaken  by  a  line  of  cars  conveying 
rubbish  to  a  tip,  he  attempted  to  jump  on  to  one  of  the 
cars,  fell,  was  run  over  and  killed.  In  attempting  to 
jump  on  one  of  the  cars  he  was  transgressing  one  of  the 
regulations  of  the  colliery.  It  was  held  that  the  accident 
did  not  arise  out  of  and  in  the  course  of  his  employ- 
ment. Pope  V.  HilVs  Plymouth  Co.  (1910),  102  L.  T. 
633;3B.  W.  C.  C.  339. 

Getting  on  and  off  vessels.  A  seaman,  when  off  duty, 
left  his  vessel  on  his  own  business.  The  vessel  was  then 
alongside  the  quay,  but  on  his  return,  two  hours  after- 
ward, it  was  some  five  or  six  feet  from  the  pier,  the  top 
of  the  rail  being  about  three  feet  lower  than  the  quay. 
The  vessel  had  no  gangway,  but  a  ladder  was  used  for 
getting  on  board.  On  his  arrival  at  the  pier,  the  sea- 
man, seeing  no  ladder,  hailed,  and,  having  got  no  answer, 
he  jumped  from  the  pier  to  the  vessel,  with  the  result 
that  his  leg  struck  against  the  rail,  and  he  was  per- 
manently injured.  It  was  held  that  the  accident  arose 
out  of  and  in  the  course  of  the  employment.  Kearon  v. 
Kearon  (1911),  45  Irish  L.  T.  96;  4  B.  W.  C.  C.  435. 


TO   WHOM   ACT   APPLIES  83 

Arising  out  of  and  in  the  course  of  the  employment 

The  workman,  a  riveter  working  on  a  ship  in  dock,  was 
about  to  go  ashore  for  his  breakfast.  When  he  came  on 
deck  he  found  the  vessel  was  being  removed  to  a  dry 
dock,  and  was  already  a  short  distance  from  the  quay. 
The  gangway  had  been  removed,  and  there  was  no 
other  means  of  getting  ashore  than  by  slipping  down  a 
rope  which  still  held  the  vessel  to  the  quay.  By  means 
of  this  rope  a  fellow  workman  got  ashore  safely,  and 
the  applicant  attempted  to  follow  him.  The  rope  gave 
way,  and  he  was  thrown  against  the  quay  wall  and  in- 
jured. It  was  held  by  the  Court  of  Appeal  that  there 
was  evidence  to  support  the  finding  of  the  County 
Court  judge  that  the  accident  arose  out  of  and  in  the 
course  of  the  man's  employment.  Keyser  v.  Burdick  & 
Co.  (1910),  4  B.  W.  C.  C.  87.  The  deceased  was  a  sea- 
man on  board  a  steamship  and  had  gone  ashore  with 
leave  for  purposes  of  his  own.  The  ship  was  moored  to 
another  vessel,  which  was  made  fast  to  the  quay,  so 
that,  in  order  to  board  his  own  ship,  the  deceased  had 
first  to  cross  the  deck  of  the  other  vessel.  There  was 
evidence  that  the  deceased,  on  his  return,  safely  boarded 
the  other  vessel,  and  got  on  to  the  gangway  between 
the  two  ships.  The  gangway,  however,  gave  way,  and 
he  fell  into  the  water  and  was  drowned.  It  was  held 
that  the  deceased  met  his  death  by  an  accident  arising 
out  of  and  in  the  course  of  his  employment.  Leach  v. 
Oakley,  Street  &  Co.  (1910),  4  B.  W.  C.  C.  91.  A  work- 
man was  employed  to  watch  trawlers  as  they  lay  in  a 
harbor.  He  was  on  duty  for  twenty-five  hours,  during 
which  time  he  had  to  provide  his  own  food,  and  in  con- 
nection with  his  duties  it  was  occasionally  necessary 
for  him  to  be  on  the  quay  to  which  the  trawlers  were 
moored.    In  the  course  of  his  watch  he  left  the  boats 


84    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

and  went  to  a  hotel  near  at  hand  for  some  refreshments. 
He  was  absent  a  very  short  time,  had  returned  to  the 
quay,  and  while  descending  a  fixed  ladder  attached  to 
the  quay  to  go  on  board  one  of  the  trawlers,  he  fell  into 
the  water  and  was  drowned.  The  arbitrator  found  that 
the  accident  to  the  deceased  arose  out  of  and  in  the 
course  of  his  employment  within  the  meaning  of  the 
Act  of  1906.  It  was  held  by  the  House  of  Lords  that 
there  was  evidence  upon  which  the  arbitrator  could  so 
find.  Jackson  v.  General  Steam  Fishing  Co.  (1909),  A. 
C.  523;  101  L.  T.  401 ;  2  B.  W.  C.  C.  56.  A  fireman  on 
board  a  steamship  lying  off  South  Brooklyn,  went  on 
shore  for  the  purpose  of  obtaining  for  himself  certain 
necessaries  which  were  not  provided  by  the  owners  of 
the  ship.  On  returning  to  the  ship  he  fell  off  a  ladder 
which  was  the  only  means  of  access  from  the  quay  to 
the  ship  and  was  drowned.  It  was  held  by  the  House 
of  Lords  that  the  accident  arose  out  of  and  in  the  course 
of  the  man's  employment  and  that  therefore  his  widow 
was  entitled  to  compensation.  Moore  v.  Manchester 
Liners  (1908),  3  B.  W.  C.  C.  527,  rev'g  1  K.  B.  417;  2 

B.  W.  C.  C.  87.  A  seaman  in  returning  to  his  ship 
passed  over  a  gangway  from  the  wharf,  and  had  one 
foot  on  the  rail  of  the  ship  and  the  other  on  a  ladder 
leading  from  the  rail  to  the  deck,  when  he  overbalanced 
and  fell  over  the  side  of  the  ship  and  was  drowned.  It 
was  held  that  the  accident  arose  out  of  and  in  the 
course  of  the  workman's  employment.  Canavan  v.  Own- 
ers of  the  Steamship  "Universal  (1910),  3  B.  W.  C. 

C.  355.  A  steward  of  a  steamship  discharging  at  the 
port  of  Montreal,  Canada,  went  on  shore  in  the  evening 
as  he  was  permitted  to  do.  Returning  late  in  the  even- 
ing to  his  ship,  as  was  alleged,  in  a  state  of  intoxication 


TO  WHOM  ACT  APPLIES  85 

Arising  out  of  and  in  the  course  of  the  employment 

or  semi-intoxication,  he  attempted  to  board  the  ship 
by  using  the  cargo  skid  or  stage,  instead  of  the  gang- 
way. In  doing  so  he  sUpped  and  fell  and  received  in- 
juries from  the  effect  of  which  he  died.  It  was  held  that 
the  injury  arose  out  of  and  in  the  course  of  the  employ- 
ment. Robertson  v.  Allan  Brothers  &  Co.  (1908),  98 
L.  T.  821;  1  B.  W.  C.  C.  172.  When  a  ship  was  lying 
in  Glasgow  harbor  a  seaman  went  ashore  without  leave 
and  returned  to  his  ship  later  in  the  evening  in  a  state 
of  intoxication.  He  went  to  his  bunk  and  was  found 
next  morning  lying  injured  at  the  bottom  of  the  hold  of 
the  ship  and  from  these  injuries  he  subsequently  died. 
There  was  no  evidence  as  to  how  the  man  got  to  the 
place  where  he  was  injured.  To  reach  the  place  it  was 
necessary  for  him  to  pass  through  a  door  which  was 
broken  or  forced  open,  by  whom  there  was  no  evidence 
to  show.  It  was  held  that  there  was  no  evidence  that 
the  accident  arose  out  of  the  employment.  O'Brien  v. 
Star  Line  (1908), 45  Scotch  L.  T.  935;  1  B.  W.  C.  C.  177. 
A  workman  engaged  upon  a  ship,  working  overtime, 
went  ashore  between  9.30  and  10  a.  m.  to  buy  some 
bread.  He  was  told  by  the  foreman  not  to  go,  and 
could  previously,  during  the  interval  allowed  for  tea, 
have  procured  the  bread.  Upon  his  return,  while  at- 
tempting to  jump  from  the  quay  to  the  ship,  he  fell  and 
was  killed.  It  was  held  that  the  accident  did  not  arise 
out  of  and  in  the  course  of  the  employment.  Martin  v. 
Fullerton  &  Co.  (1908),  45  Scotch  L.  R.  812;  1  B.  W.  C. 
C.  168.  The  second  engineer  of  a  steam  trawler  which 
was  in  dry  dock  at  the  time,  went  ashore  to  his  home 
for  dinner.  As  he  returned  to  the  ship  he  fell  into  a  dry 
dock  and  was  killed.  It  was  held  that  the  accident  did 
not  arise  out  of  and  in  the  course  of  the  engineer's  em- 


86    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

ployment.  Gilbert  v.  Owners  of  the  "Nizam^'  (1910), 
3  B.  W.  C.  C.  455.  In  the  last-mentioned  case  the  court 
said:  ''I  decUne  to  assent  to  the  view  that  a  ship  is  in  a 
different  position  from  a  factory  for  this  purpose.  This 
is  a  simple  case  where  a  man  has  been  to  his  own  home 
to  get  his  dinner,  and  has  met  with  an  accident  on  his 
way  back  to  the  scene  of  his  labors.  That  question  has 
been  raised  and  decided  against  the  workman,  not 
once,  but  again  and  again  by  this  court." 

The  captain  of  a  vessel  left  his  ship  in  Bangor  Roads 
and  went  to  a  hotel  a  hundred  yards  away  from  the 
dock.  He  returned  to  the  dock  at  about  11  p.  m.  and 
hailed  his  ship  for  a  boat.  He  was  not  heard  from  for 
some  time,  but  eventually  a  boat  put  off.  Before  the 
boat  reached  him  he  fell  over  the  dock  side  and  was 
drowned.  The  evidence  was  consistent  with  his  going 
to  the  hotel  for  his  own  pleasure,  or  in  the  course  of  his 
employment.  It  was  held  that  the  dependents  had  not 
discharged  the  onus  of  proving  that  the  accident  arose 
out  of  and  in  the  course  of  the  employment.  Hewitt  and 
Others  v.  Owners  of  the  Ship  "Duchess''  (1910),  102  L. 
T.  204;  3  B.  W.  C.  C.  239.  "The  workman,  who  was  a 
sailor,  left  his  ship  and  went  for  a  week-end  to  his  son's 
house,  which  was  some  considerable  way  down  the 
river  at  Poplar.  He  took  his  dinner  and  tea  there  and 
he  slept  there.  On  the  Monday  morning  he  started  to 
rejoin  his  vessel.  On  his  way  he  slipped  on  some  steps 
at  the  riverside,  and  injured  himself.  We  certainly 
cannot  go  the  length  of  saying  that  this  was  an  accident 
arising  out  of  and  in  the  course  of  this  man's  employ- 
ment. The  case  would  be  exactly  the  same  if  he  had 
slipped  on  the  pavement  in  the  street  before  he  came  to 
the  steps.    We  have  pointed  out  not  once  or  twice  but 


TO   WHOM   ACT   APPLIES  87 

Arising  out  of  and  in  the  course  of  the  employment 

often  that,  save  in  certain  exceptional  circumstances, 
the  Act  does  not  extend  to  and  protect  the  workman 
when  on  his  way  from  his  house  to  his  employment. 
Still  less  does  it  protect  him  when  out  for  his  own 
pleasure  for  a  week-end."  It  was  held  therefore  that 
the  accident  did  not  arise  out  of  and  in  the  course  of 
the  employer's  employment.  Kelly  v.  Owners  of  the 
"Foam  Queen''  (1910),  3  B.  W.  C.  C.  113.  Where 
an  employer  gave  to  an  employ^  a  railway  ticket  and 
ordered  him  to  report  on  board  ship  for  work  at  7  a.  m., 
and  while  the  workman  was  on  his  way  to  the  ship  he 
fell  off  the  dock  and  was  injured,  which  dock  was  not 
under  the  control  of  his  employer,  it  was  held  that 
the  giving  of  the  railway  ticket  was  merely  a  gratuitous 
concession  by  the  employers  and  that  it  was  in  no  way 
obligatory  on  the  workman  to  go  or  return  from  his 
work  by  train  as  provided  in  the  ticket,  and  that  there- 
fore the  accident  did  not  arise  out  of  and  in  the  course 
of  the  man's  employment.  Nolan  v.  Porter  and  Sons 
(1909),  2  B.  W.  C.  C.  106.  A  steward  on  a  steamship 
had  gone  ashore  with  leave.  At  about  10  p.  m.  he  was 
passed  onto  the  wharf  by  the  doorkeeper  who  saw  him 
make  his  way  toward  the  ship.  He  was  not  seen  board- 
ing the  gangway,  nor  was  there  any  evidence  that  he 
ever  reached  it,  but  the  watchman  heard  a  splash  in 
the  water  and  a  cry  of  ''Man  overboard."  When  the 
body  was  recovered  life  was  extinct.  It  was  held  that 
the  applicant  for  compensation  had  not  discharged  the 
onus  of  proving  that  the  accident  arose  out  of  and  in 
the  course  of  the  man's  employment.  Kitchenham  v. 
Owners  of  S.  S.  "Johannesburg"  (1910),  4  B.  W.  C.  C. 
91,  affirmed  by  the  House  of  Lords,  4  B.  W.  C.  C.  311. 
A  workman  was  descending  the  side  of  a  ship  by  a  rope 


55      BRADBURY  S   WORKMEN  S   COMPENSATION   LAW 

Arising  out  of  and  in  the  course  of  the  employment 

ladder.  The  ladder  twisted  suddenly,  he  gave  a  cry, 
and  then  fell  into  the  water.  He  was  dead  when  picked 
up.  The  medical  evidence  was  that  death  was  due  to 
heart  failure  and  not  to  drowning  and  that  the  heart 
was  in  such  a  state  that  any  slight  exertion  might  have 
caused  failure.  The  County  Court  judge  found  that 
death  was  due  to  accident  arising  out  of  and  in  the 
course  of  the  employment,  and  awarded  compensation. 
It  was  held  on  appeal  that  there  was  evidence  to  sup- 
port the  finding.  Trodden  v.  J.  McLennard  &  Sons 
(1911),  4  B.  W.  C.  C.  190.  A  captain  left  his  ship  and 
went  to  a  hotel  100  yards  from  the  quay.  He  returned 
to  the  quay  and  hailed  his  ship  for  a  boat.  After  some 
time,  a  boat  put  off,  but  before  it  reached  the  quay  the 
captain  fell  into  the  water  and  was  drowned.  The 
evidence  was  equally  consistent  with  his  having  gone 
ashore  for  his  own  purposes  or  for  purposes  connected 
with  his  duties.  It  was  held  by  the  House  of  Lords  that 
the  accident  did  not  arise  out  of  and  in  the  course 
of  the  employment.  Fletcher  v.  Owners  of  Steamship 
"Duchess"  (1911),  4  B.  W.  C.  C.  317.  A  sailor,  re- 
turning on  board  his  ship  after  a  trip  on  shore,  not  con- 
nected with  his  employment,  fell  into  the  water  from 
steps  leading  from  the  gangway,  of  which  they  formed 
part,  and  was  drowned.  It  was  held  that  this  was  not 
an  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment. Hyndman  v.  Craig  &  Co.  (1910),  44  Irish 
L.  T.  11;4B.  W.  C.  C.  438. 

A  seaman  while  returning  on  board  ship  from  the 
shore,  when  the  ship  was  lying  in  port,  slipped  on  the 
gangway  and  fell  over  the  gangway  ropes,  striking  his 
head  in  falling,  and  received  injuries  which  proved 
fatal.     There  was  no  evidence  to  show  why  the  de- 


TO   WHOM   ACT   APPLIES  89 

Arising  out  of  and  in  the  course  of  the  employment 

ceased  had  gone  there,  whether  on  the  service  of  the 
ship  or  for  his  own  purposes,  or  with  or  without  per- 
mission. It  was  held  that  the  evidence  being  equally 
consistent  that  the  deceased  was  or  was  not  on  the 
ship's  business,  the  applicant  for  compensation  had  not 
discharged  the  onus  resting  upon  her  of  showing  that 
the  injury  arose  out  of  and  in  the  course  of  the  employ- 
ment. McDonald  v.  Owners  of  Steamship  "Banana" 
(1908),  1  B.  W.  C.  C.  185. 

Injuries  at  mealtime.  A  workman  when  employed 
during  the  night  shift  took  his  supper  for  the  sake  of 
warmth  seated  on  a  tank  in  the  pump  room.  His  em- 
ployers provided  a  dining  room  for  their  workmen,  but 
they  were  not  bound  to  take  their  meals  there.  In 
getting  off  the  tank  the  workman  fell  through  a  hole  in 
the  tank,  was  scalded  and  received  injuries  from  which 
he  died.  The  workman  was  not  expressly  prohibited 
from  going  on  to  the  tank,  but  the  evidence  was  that 
he  had  no  right  to  be  there,  and  if  found  there  he  would 
have  been  dismissed.  It  was  held  that  the  accident  did 
not  arise  out  of  the  workman's  employment.  Brice  v. 
Edward  Lloyd  (1909),  2  K.  B.  804;  2  B.  W.  C.  C.  26. 
The  court  distinguished  the  case  of  Blovelt  v.  Sawyer 
(1904),  1  K.  B.  271;  6  W.  C.  C.  16.  In  the  last  men- 
tioned case  the  accident  happened  to  a  bricklayer  dur- 
ing the  dinner  hour.  It  appeared  that  there  was  no 
absolute  rule  as  to  the  workmen  going  or  staying  in  the 
building  during  the  dinner  hour,  so  that  they  were  at 
liberty  to  stay  there  and  eat  their  dinner  if  they  so 
desired.  At  the  dinner  hour  the  workman  employed  on 
the  building  under  course  of  erection  remained  in  the 
building  and  sat  down  under  a  wall  to  eat  his  dinner. 
The  wall  fell  on  him  while  he  was  sitting  there  and  caused 


90     Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

the  injury  for  which  he  claimed  compensation.  It  was 
held  that  he  was  entitled  to  compensation,  as  the  ac- 
cident arose  out  of  and  in  the  course  of  the  man's  em- 
ployment. 

Where,  by  an  arrangement  between  a  railway  com- 
pany and  certain  employes,  they  were  allowed  to  go  to 
a  cabin  on  the  railway  company's  premises  for  certain 
meals,  and  one  of  such  employes  was  returning  from  the 
cabin  after  having  a  meal  there,  and  was  knocked  down 
by  a  car  which  was  being  shunted  on  one  of  the  com- 
pany's tracks,  it  was  held  that  the  injury  arose  out  of 
and  in  the  course  of  the  employment.  Earnshaw  v. 
Lancashire  &  Yorkshire  Ry.  Co.  (1903),  5  W.  C.  C.  28. 

A  night  watchman  who  left  his  box  and  went  into  a 
shanty  where  tools  were  kept  to  cook  and  eat  his  food 
and  was  injured  by  the  falling  of  the  shanty  was  held 
to  have  been  injured  by  accident  arising  out  of  and  in 
the  course  of  his  employment.  Morris  v.  Lambeth 
Borough  Council  (1905),  8  W.  C.  C.  1. 

Relieving  nature.  During  the  dinner  hour  a  man  met 
with  an  accident  when  returning  from  a  place  where  he 
had  gone  to  relieve  nature  and  it  was  held  that  the 
accident  arose  out  of  and  in  the  course  of  the  employ- 
ment. Elliott  V.  Rex  (1904),  6  W.  C.  C.  27.  In  the 
last-mentioned  case  the  court  refused  to  follow  the  de- 
cision in  the  case  of  Pearce  v.  London  &  South  Western 
Ry.  Co.  (1899),  2  W.  C.C.  152,  where  it  was  held  that 
when  a  man  was  injured  when  going  to  relieve  nature 
during  the  breakfast  hour  that  the  accident  did  not 
arise  out  of  the  employment. 

A  workman  instead  of  going  to  the  proper  place  for  a 
necessary  purpose  went  into  a  confined  space  under- 
neath a  table  engine  and  stepped  into  boiling  water  in 


TO   WHOM   ACT  APPLIES  91 

Arising  out  of  and  in  the  course  of  the  employment 

a  cistern  which  was  sunk  into  the  ground  to  receive  the 
escaping  hot  water  from  the  engine.  It  was  held  that 
the  accident  did  not  arise  out  of  and  in  the  course  of 
employment.  Thomson  v.  Flemington  Coal  Co.  (1911), 
48  Scotch  L.  R.  740;  4  B.  W.  C.  C.  406. 

Doing  forbidden  acts.  A  brusher  in  a  mine,  v/ho  had 
finished  his  work  for  the  day,  jumped  on  to  a  hutch  in 
order  to  ride  to  the  pit  bottom.  On  the  way  he  was 
knocked  off  the  hutch  by  his  head  coming  into  contact 
with  two  crowns  which  were  below  the  ordinary  pit 
level,  and  was  injured.  A  special  rule,  of  which  the 
injured  man  was  cognizant,  forbade  miners  from  riding 
on  the  hutches.  It  was  held  that  the  accident  did  not 
arise  out  of  the  employment.  Kane  v.  Merry  &  Cun- 
inghame  (1911),  48  Scotch  L.  R.  430;  4  B.  W.  C.  C. 
379.  A  workman  who  is  injured  while  doing  something 
which  he  has  been  absolutely  forbidden  to  do  cannot 
be  said  to  be  injured  while  in  the  course  of  his  employ- 
ment. Whiteheadv. Reader  (1901), SW.C.C.AO.  The 
rules  of  a  pit  provided  that  explosives  capable  only  of 
being  fired  by  detonators  should  be  used ;  that  the  d,et- 
onators  should  be  securely  kept  and  issued  only  to 
shot-firers;  and  that  every  shot  should  be  fired  by  a 
competent  person  appointed  in  writing  to  perform  the 
duty.  On  the  occasion  in  question,  after  the  shot-firer 
had  left  the  pit,  a  miner,  who  had  a  detonator  in  his 
possession  which,  however,  he  had  not  received  from 
the  shot-firer,  started  to  fire  a  shot.  This  was  not  his 
duty,  and  was  in  direct  opposition  to  orders.  In  the 
course  of  the  operation  an  explosion  occurred  whereby 
he  was  killed.  It  was  held  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  the  employment.  Kerr 
v.  William  Baird  &  Co.  (1911),  48  Scotch  L.  R.  646;  4 


92    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

B.  W.  C.  C.  397.  A  message  boy,  who  was  employed  in 
delivering  fish  at  a  kitchen  situated  on  the  third  floor 
of  an  infirmary,  was  injured  while  making  his  way  from 
the  ground  floor  by  means  of  a  hoist.  There  was  a 
notice  at  the  side  of  the  hoist  to  the  effect  that  it  was 
only  to  be  used  by  servants  of  the  institution,  and 
worked  only  by  those  specially  authorized  by  the 
directors,  but  it  was  not  proved  that  the  boy  had  read 
the  notice,  or  had  his  attention  directed  to  it,  though  it 
was  proved  that  he  had  been  cautioned  against  using 
the  hoist.  It  was  held  that  the  accident  did  not  arise 
out  of  and  in  the  course  of  his  employment.  M'Daid 
V.  Steel  (1911),  48  Scotch  L.  R.  765;  4  B.  W.  C.  C.  412. 
A  miner  was  warned  by  a  fireman  not  to  remain  at 
work  at  a  certain  place,  as  blasting  operations  were 
about  to  commence.  He  left  the  place  and  went  to 
work  at  some  distance  away.  Here  he  remained  at 
least  an  hour.  Blasting  operations  commenced,  and 
subsequently  the  workman  was  found  dead  among  the 
debris.  There  was  no  evidence  as  to  how  he  got  there. 
The  arbitrator  found  that  the  injury  did  not  arise  in 
the  course  of  his  employment.  It  was  held  that  there 
was  evidence  to  support  the  finding.  Traynor  v.  Robert 
Addie  &  Sons  (1910),  48  Scotch  L.  R.  820;  4  B.  W.  C. 

C.  357.  A  workman  was  employed  as  a  ''damper"  in 
a  colliery.  He  worked  some  distance  away  from  the 
pitshaft,  and  on  the  day  of  the  accident  he,  with  others, 
got  into  an  empty  tub  on  an  endless  rope,  to  ride  to  the 
spot  where  they  were  working.  This  method  of  transit 
was  expressly  forbidden,  and  fines  were  inflicted  for 
disobedience,  but  the  rule  was  habitually  disregarded. 
On  the  journey  the  deceased  raised  his  head  above  the 
level  of  the  tub,  and  became  pinned  between  the  roof 


TO  WHOM   ACT   APPLIES  93 

Arising  out  of  and  in  the  course  of  the  employment 

and  truck,  receiving  injuries  which  proved  fatal.  It 
was  held  by  the  Court  of  Appeal  that  the  accident  did 
not  arise  out  of  the  workman's  employment.  Barnes 
V.  The  Nunnery  Colliery  Co.  (1910),  4  B.  W.  C.  C.  43. 
A  workman  in  a  power  house  dusted  the  switchboard. 
It  was  no  part  of  his  duty,  and  he  was  expressly  for- 
bidden to  do  so.  In  doing  this  he  fell  against  the  live 
gear,  and  sustained  injuries.  It  was  held  that  the  acci- 
dent did  not  arise  out  of  the  employment.  Jenkinson 
V.  Harrison  Ainslie  &  Co.  (1911),  4  B.  W.  C.  C.  194. 
A  boy  was  employed  to  hand  balls  of  clay  in  molds  to 
a  molder,  and  was  told  not  to  touch  the  machinery. 
Having  nothing  to  do  for  the  moment,  he  attempted 
to  clean  the  machinery  and  was  thereby  injured.  It 
was  held  that  the  accident  did  not  arise  out  of  and  in 
the  course  of  the  employment.  Lowe  v.  Pearson  (1899), 
79  L.  T.  654;  1  W.  C.  C.  5. 

A  workman  employed  in  a  coal  mine  as  a  drawer,  was 
working  in  a  level  from  which  an  "upset"  was  being 
driven.  On  the  day  of  the  accident  the  fireman  dis- 
covered an  outbreak  of  gas  in  the  "upset,"  and  accord- 
ingly placed  a  board  across  the  entrance,  chalking  upon 
it,  "No  road  up  here."  Such  a  board  or  fence  was  the 
usual  mode  of  warning  persons  that  it  was  dangerous  to 
enter  the  place  so  fenced.  The  workman  understood 
what  the  putting  up  of  the  board  meant,  and  that  it 
was  dangerous  to  work  in  the  "upset."  He  required 
a  pick,  and  knowing  that  one  had  been  left  in  the  up- 
set, he  went  to  get  it  and  passed  over  or  under  the 
fence  with  a  naked  light  in  his  cap.  An  explosion  took 
place  and  he  was  killed.  It  was  held  that  the  accident 
arose  out  of  the  employment.  Conway  and  another  v. 
Pumpherston  Oil  Co.  (1911),  48  Scotch  L.  R.  632;  4 


94    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

B.  W.  C.  C.  392.  The  court  followed  the  case  of 
Whitehead  v.  Reader  (1901),  2  K.  B.  48,  where  the  fol- 
lowing rule  is  laid  down:  ''I  agree  in  what  has  already 
been  pointed  out,  that  it  is  not  every  breach  of  a 
master's  orders  that  would  have  the  effect  of  termin- 
ating the  servant's  employment  so  as  to  excuse  the 
master  from  the  consequences  of  the  breach  of  his 
orders.  We  have  to  get  back  to  the  orders  emanating 
from  the  master  to  see  what  is  the  sphere  of  employ- 
ment of  the  workman,  and  it  must  be  competent  to  the 
master  to  limit  that  sphere.  If  the  servant  acting 
within  the  sphere  of  his  employment  violates  the  order 
of  his  master,  the  latter  is  responsible.  It  is,  however, 
obvious  that  a  workman  cannot  travel  out  of  the  sphere 
of  his  employment  without  the  order  of  his  employer 
to  do  so;  and  if  he  does  travel  out  of  the  sphere  of  his 
employment  without  such  an  order,  his  acts  do  not 
make  the  master  liable  either  to  the  workman  under 
the  Workmen's  Compensation  Act,  1897,  or  to  third 
persons  at  common  law." 

A  collier  was  sent  to  drill  a  hole  from  above  into  a 
seam,  in  order  to  draw  off  gases  and  render  the  seam 
safe.  The  seam  itself  was  marked  off  as  forbidden 
meanwhile.  The  man  asked  if  he  might  go  into  the 
seam  to  see  if  the  drill  was  running  straight,  and  was 
told  that  he  must  not.  He,  nevertheless,  went  and  was 
suffocated.  It  was  held  that  there  was  evidence  to 
support  the  finding  of  the  County  Court  judge,  that 
the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. Harding  v.  Brynddu  Colliery  Co.  (1911), 
2K.  B.  747;4B.  W.  C.  C.  269. 

Doing  acts  for  which  the  workman  is  not  employed.  A 
boy  employed  in  a  spinning  mill  injured  himself  while 


TO   WHOM   ACT   APPLIES  95 

Arising  out  of  and  in  the  course  of  the  employment 

cleaning  machinery  in  motion.  The  judge  found,  as  a 
fact,  that  he  was  not  employed  to  clean  the  machinery. 
It  was  held  that  the  accident  did  not  arise  out  of  the 
employment.  Naylor  v.  Musgrave  Spinning  Co.  (1911), 
4  B.  W.  C.  C.  286.  A  workwoman,  employed  solely  to 
work  one  machine,  scratched  her  hand  on  a  machine  of 
another  sort.  It  was  not  explained  how  she  came  to  be 
at  the  other  machine.  Blood  poisoning  followed,  and 
she  died.  It  was  held  that  the  County  Court  judge 
was  not  justified  in  inferring  that  the  accident  arose 
out  of  the  employment.  Cronin  v.  Silver  (1911),  4  B. 
W.  C.  C.  221.  An  engine  driver  left  his  engine  when  it 
was  standing  at  rest,  and  crossed  the  line  in  order  to 
communicate  with  the  fireman  of  another  engine  on 
business  of  his  own  not  in  any  way  concerning  his  work 
or  his  employers.  On  his  way  back  to  his  engine  he 
was  knocked  down  by  a  truck  and  was  killed.  It  was 
held  that  the  accident  did  not  arise  out  of  or  in  the 
course  of  the  man's  employment  within  §  1  (1)  of  the 
Act  of  1897.  (House  of  Lords),  Reed  v.  Great  Western 
Ry.  Co.  (1908),  99  L.  T.  781;  2  B.  W.  C.  C.  109.  A 
workman  going  home  to  dinner  through  his  employ- 
ers' docks,  attempted  to  climb  on  a  car  of  a  railway 
which  traversed  a  portion  of  the  docks,  and  in  doing  so 
he  fell  and  received  permanent  injuries.  The  arbitrator 
found  that  he  did  not  attempt  to  climb  on  the  car  for 
any  object  of  his  employers,  but  for  his  own  pleasure, 
and  it  was  held  that  the  accident  did  not  arise  out  of 
the  employment.  Morrison  v.  Clyde  Navigation  Trus- 
tees (1908),  46  Scotch  L.  R.  38;  2  B.  W.  C.  C.  99.  A 
domestic  servant,  who  was  outside  the  door  of  her  em- 
ployer's house  drying  her  hair,  returned  in  response  to 
an  order,  to  the  house  to  take  charge  of  a  baby  in  a 


96     Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

cradle  within  a  couple  of  feet  of  the  fire.  She  con- 
tinued the  operation  of  drying  her  hair;  her  sleeve  was 
loose  and  caught  fire  and  from  the  injuries  she  died. 
No  one  witnessed  the  accident,  but  according  to  a 
statement  made  by  the  girl  herself  after  the  happening 
of  the  occurrence,  her  clothes  caught  fire  while  she  was 
drying  her  hair.  It  was  held  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  her  employment. 
Clifford  V.  Joy  (1909),  43  Irish  L.  T.  193;  2  B.  W.  C.  C. 
32.  Where  a  customer  in  a  hotel  went  into  the  kitchen, 
where  he  had  no  business  to  be  and  made  a  rush  at  the 
cook,  who,  in  trying  to  avoid  him,  put  her  arm  through 
a  glass  door  and  was  seriously  hurt,  it  was  held  that 
this  was  not  an  accident  to  the  cook  arising  out  of  the 
employment.  Murphy  v.  Berwick  (1909),  43  Irish  L. 
T.  126;  2  B.  W.  C.  C.  103.  A  boy  who  had  charge  of 
the  handle  of  a  machine,  lifted  off  the  cover  over  some 
pinion  wheels  and  played  with  them,  with  the  result 
that  his  hand  was  caught  in  the  wheels  and  the  end  of 
one  of  his  fingers  was  torn  off.  He  had  orders  not  to 
lift  the  cover  or  touch  the  pinion  wheels.  It  was  held 
that  the  accident  did  not  arise  out  of  and  in  the  course 
of  the  employment.  Furniss  v.  Gartside  &  Co.  (1910), 
3  B.  W.  C.  C.  411.  A  stoker  on  a  locomotive  engine 
received  by  mistake  the  wages  of  another  man.  He 
left  his  engine  and  went  over  to  an  engine  on  which  the 
other  man  was  working,  in  order  to  give  him  these 
wages.  This  engine  was  traveling  about  five  miles  an 
hour.  The  workman  attempted  to  board  the  engine  by 
grasping  the  rails  at  the  side  of  the  doorway,  missed  the 
step  and  sustained  personal  injuries  by  the  wheels  of 
the  engine  passing  over  his  foot.  It  was  held  that  the 
attempt  to  board  the  engine  while  in  motion  was  ob- 


TO   WHOM   ACT  APPLIES  97 

■^  Arising  out  of  and  in  the  course  of  the  employment 

viously  dangerous  and  wholly  unnecessary,  and  that 
the  accident  did  not  arise  out  of  and  in  the  course  of 
the  employment.  Williams  v.  The  Wigan  Coal  and 
Iron  Co.  (1909),  3  B.  W.  C.  C.  65.  A  workman  sent 
on  an  errand  loitered  on  the  way  back  and  wasted  time 
with  friends,  so  that  he  took  two  hours  to  go  about 
a  half  a  mile,  at  the  end  of  which  he  suffered  an  acci- 
dent, and  it  was  held  that  it  did  not  arise  out  of 
and  in  the  course  of  the  employment.  Bates  v.  Davies' 
Executors  (1909),  2  B.  W.  C.  C.  459.  A  laborer  in 
a  mine  was,  without  instructions,  acting  as  a  collier 
and  was  injured,  and  it  was  held  that  the  accident 
did  not  arise  out  of  and  in  the  course  of  his  employ- 
ment. Edwards  v.  International  Coal  Co.  (1899),  5  W. 
C.  C.  21.  A  girl,  eighteen  years  of  age,  acting  as  she 
thought  in  her  master's  interest,  left  her  work  to  start 
an  engine,  which  was  in  charge  of  a  person  who  was  not 
present.  Several  of  her  companions  warned  her  that 
she  ought  not  to  touch  it.  She  was  injured  in  starting 
the  engine,  and  it  was  held  that  the  accident  did  not 
arise  out  of  and  in  the  course  of  the  employment. 
Losh  V.  Evans  &  Co.  (1902),  5  W.  C.  C.  17.  An  accident 
which  occurs  to  a  workman  while  doing  something  for 
his  own  pleasure,  foreign  to  his  duty  and  his  employer's 
interest,  does  not  arise  out  of  and  in  the  course  of  the 
employment.  Smith  and  another  v.  The  Lancashire  & 
Yorkshire  Ry.  Co.  (1899),  79  L.  T.  633;  1  W.  C.  C.  1. 

Where  two  boys  were  employed  in  threshing,  they 
exchanged  positions  with  the  knowledge  of  the  foreman 
in  charge,  and  one  of  them  was  injured.  It  was  held 
that  such  injury  occurred  during  the  course  of  the  boy's 
employment.  Cambrook  v.  George  (1903),  5  W.  C.  C. 
26. 

7 


98     Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

Obeying  orders  which  workman  is  not  hound  to  obey. 
An  accident  which  occurs  while  a  man  is  complying 
with  an  order  which,  although  he  knows  or  ought  to 
know  he  need  not  obey,  because  it  is  against  the  rules, 
but  which  is  given  to  him  by  one  from  whom  he  re- 
ceived his  orders,  may,  nevertheless,  be  an  accident 
arising  out  of  and  in  the  course  of  the  employment. 
Statham  v.  Galloways  Limited,  2  W.  C.  C.  149. 

Acting  on  orders  supposed  to  be  authoritative.  A  boy 
thirteen  years  of  age,  whose  duty  was  to  do  all  sorts  of 
things  under  the  direction  of  a  foreman,  was  untruth- 
fully told  by  another  man  that  the  foreman  said  he  was 
to  do  certain  work,  and  the  boy  did  it,  in  the  course  of 
which  he  was  injured,  and  it  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  his  employment. 
Brown  v.  Scott  (1899),  1  W.  C.  C.  11. 

Acting  on  an  emergency.  A  boy  was  employed  to 
grease  the  wheels  and  axles  of  railway  trucks.  While 
waiting  for  trucks  to  come  up  he  thought  the  switch  was 
against  the  engine,  and  began  to  pull  the  lever  in  order 
to  open  it  and  was  injured.  It  was  held  that  there  was 
evidence  of  an  accident  arising  out  of  and  in  the  course 
of  his  employment.  Harrison  v.  Whitaker  Bros.,  2  W. 
C.  C.  12. 

A  workman  was  employed  by  a  lion  tamer  to  look 
after  the  baggage,  clean  out  lion  cages,  and  generally 
make  himself  useful,  but  it  was  no  part  of  his  duty  to 
feed  lions.  One  afternoon  the  workman  was  left  in  sole 
charge  of  the  cages  of  lions,  with  orders  to  see  that  no 
harm  came  to  them  or  anyone  else  by  reason  of  their 
fierceness.  One  of  the  lions  got  out  of  a  cage  and  into  a 
dressing  room,  but  there  was  no  evidence  to  show  how 
it  happened.     The  workman  went  into  the  dressing 


TO   WHOM   ACT   APPLIES  99 

Arising  out  of  and  in  the  course  of  the  employment 

room  and  tried  to  drive  the  lion  back  into  the  cage, 
when  the  lion  turned  on  him  and  killed  him.  In  a 
claim  by  the  dependents  against  the  employer  under 
the  Compensation  Act  of  1906,  the  County  Court  judge 
dismissed  the  claim,  being  of  the  opinion  that  the  facts 
were  consistent  only  with  the  deceased  having  inter- 
fered with  the  lion  for  some  purpose  of  his  own,  there 
being  no  evidence  to  support  the  theory  that  the  lions 
had  fought  or  that  the  deceased  had  acted  on  an 
emergency.  It  was  held  on  appeal,  however,  that  as 
the  deceased  had  been  left  in  charge,  it  was  his  duty  to 
get  the  lion  back  into  the  cage,  and  that  as  he  was 
killed  in  the  discharge  of  his  duty,  the  accident  arose 
out  of  and  in  the  course  of  his  employment.  Hapelman 
V.  Poole  (1908),  25  T.  L.  R.  155;  2  B.  W.  C.  C.  48. 

Authority  for  a  servant  to  act  on  an  emergency  in 
his  master's  interest  may  be  implied.  Where  a  work- 
man was  injured  in  attempting  to  stop  his  master's 
runaway  horse,  it  was  held  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment,  although  his 
work  was  wholly  unconnected  with  the  horses.  Rees 
v.  Thomas  (1899),  80  L.  T.  578;  1  W.  C.  C.  9. 

A  man  employed  by  the  owner  of  a  canal  boat,  as 
driver,  who  was  forbidden  by  his  employer  to  take  part 
in  the  steering  or  management  of  the  boat,  was  drowned 
while  engaged  in  steering.  A  boatman  who  had  been 
temporarily  in  charge  of  the  horse  had  deserted  a  short 
time  before  the  accident,  and  the  other  boatman  who 
was  also  master  of  the  boat,  then  decided  to  drive, 
telling  the  deceased  at  the  same  time  to  steer.  It  was 
held  that  no  emergency  had  arisen  which  justified  the 
deceased  in  violating  the  orders  of  his  employer  in 
steering  the  boat,  and  that  therefore  the  accident  did 


100    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

not  arise  out  of  and  in  the  course  of  the  employment. 
Whelan  v.  Moore  (1909),  43  Irish  L.  T.  205;  2  B.  W.  C. 
C.  114. 

Saving  life  of  another.  An  accident  occurring  while 
making  an  attempt  to  save  the  life  of  a  fellow  workman 
was  held  to  arise  out  of  and  in  the  course  of  the  em- 
ployment. Matthews  v.  Bedworth  (1899),  1  W.  C.  C. 
124. 

Larking,  joking  or  fooling.  A  boy,  set  to  clean  a 
machine  at  rest,  was  larking  with  another  boy,  and 
accidently  started  the  machine,  thereby  injuring  him- 
self. It  was  held  that  the  accident  did  not  arise  out  of 
the  employment.  Cole  v.  Evans,  Son,  Lescher  &  Wehb 
(1911),  4  B.  W.  C.  C.  138;  following  Furniss  v.  Gartside 
&  Co.,  3  B.  W.  C.  C.  411.  A  domestic  servant  while 
engaged  in  the  performance  of  her  duties  was  struck  on 
the  eye  by  a  child's  ball  playfully  thrown  at  her  by  a 
fellow  servant,  the  child's  nurse,  with  the  result  that 
she  almost  completely  lost  the  sight  of  the  eye.  It  was 
held  that  the  accident  did  not  arise  out  of  the  employ- 
ment within  the  meaning  of  §  1  (1)  of  the  Act  of  1906. 
Wilson  V.  Laing  (1909),  46  Scotch  L.  R.  843;  2  B.  W. 
C.  C.  118.  Some  workmen,  as  a  practical  joke,  put  the 
hook  of  their  employers'  crane,  which  they  were  work- 
ing, through  the  neckcloth  of  a  fellow  workman  who 
was  at  the  time  engaged  in  his  work  on  his  employers' 
wharf,  and  commenced  to  draw  him  up  through  the 
warehouse.  The  man  held  the  chains  with  his  hands  as 
long  as  he  could,  but  eventually  had  to  let  go  his  hold, 
and  fell  a  considerable  distance  and  was  seriously  in- 
jured. It  was  held  that  the  injury  did  not  arise  out  of 
the  employment.  Fitzgerald  v.  Clarke  &  Son  (1908), 
99  L.  T.  101 ;  1  B.  W.  C.  C.  197.    Where  one  workman, 


TO   WHOM   ACT   APPLIES  101 

Arising  out  of  and  in  the  course  of  the  employment 

in  the  spirit  of  horseplay  had  placed  another  in  a  very 
dangerous  situation,  and  a  third  workman  going  to  his 
rescue,  was  seriously  injured,  it  was  held  that  the  work- 
man who  took  the  risk,  was  noit  injured  while  perform- 
ing any  of  the  duty  owing  to  his  employers  and  that 
therefore  the  injury  did  not  arise  out  of  and  in  the 
course  of  the  employment.  Mullen  v.  D.  Y.  Stewart  & 
Co.  (1908),  45  Scotch  L.  R.  729;  1  B.  W.  C.  C.  204. 
The  applicant  for  compensation,  one  Shaw,  had  for  no 
apparent  reason  pushed  another  workman  named  Dil- 
worth  against  a  moving  rope.  Dilworth  involuntarily 
swung  up  one  hand,  in  which  he  held  a  hammer,  to  pre- 
vent falling  over  the  moving  rope,  and  this  hammer  hit 
the  applicant  over  the  eye  and  injured  him  so  badly 
that  he  lost  the  sight  of  the  eye.  It  was  held  that  the 
accident  did  not  arise  out  of  the  employment.  Shaw 
V.  Wigan  Coal  &  Iron  Co.  (1909),  3  B.  W.  C.  C.  81. 

Injury  by  fellow  workman  who  is  violating  law  at  time 
of  injury.  The  fact  that  an  injury  is  caused  by  a  fellow 
v/orkman  who  has  violated  the  Factory  Act,  and  upon 
whom  a  fine  has  been  inflicted  because  of  such  violation, 
is  no  reason  for  denying  compensation  to  the  employ^ 
who  has  been  injured.  Gibson  v.  Dunkerley  Brothers 
(1910),  3  B.  W.  C.  C.  345. 

Malicious  injury  by  another  workman.  A  workman 
was  struck  in  the  eye  by  a  piece  of  iron  maliciously 
thrown  by  another  workman  at  a  third  employ^,  and 
it  was  held  that  the  accident  did  not  arise  out  of  the 
employment.  Armitage  v.  Lancashire  and  Yorkshire  Ry. 
Co.  (1902),  86  L.  T.  883;  4  W.  C.  C.  5. 

Engine  driver  hit  by  stone  thrown  by  boy  from  bridge. 
An  injury  to  an  engine  driver  in  being  hit  by  a  stone 
thrown  by  boys  from  an  overhead  bridge  is  an  accident 


102    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

arising  out  of  the  employment.  Challis  v.  London  & 
South  Western  Ry.  Co.  (1905),  7  W.  C.  C.  23. 

Lockjaw  resulting  from  nail  in  foot.  A  gardener  while 
digging  in  his  employer ',s  garden,  was  injured  by  a  nail 
piercing  his  foot  through  his  boot,  and  died  subse- 
quently from  tetanus.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  his  employment,  and 
his  dependents  were  entitled  to  compensation.  Walker 
V.  Mullins  (1908),  42  Irish  L.  T.  168;  1  B.  W.  C.  C. 
211. 

Placed  in  position  of  peculiar  danger.  It  is  not  enough 
for  a  workman  to  assert  that  an  accident  which  has 
caused  personal  injury  to  him  would  not  have  happened 
if  he  had  not  been  in  the  particular  place  where  it 
occurred.  But  it  must  be  shown  that  the  accident 
arose  because  of  something  he  was  doing  in  the  course 
of  his  employment,  or  because  it  placed  him  in  a  posi- 
tion of  peculiar  danger,  and  the  risk  incurred  was  there- 
fore incidental  to  his  employment.  Craske  v.  Wigan 
(1909),  100  L.  T.  8;  2  B.  W.  C.  C.  35. 

Struck  by  lightning.  A  workman,  engaged  on  the  road 
during  a  storm,  whose  duty  was  to  clean  out  the  gullets 
to  prevent  the  water  flooding  the  road,  was  struck  by 
lightning.  It  was  held  that  the  death  was  not  occa- 
sioned by  accident  arising  out  of  the  employment. 
Kelly  V.  Kerry  County  Council  (1908),  42  Irish  L.  T.  23; 
1  B.  W.  C.  C.  194.  But  see  Andrew  v.  Failsworth  In- 
dustrial Soc.  (1904),  90  L.  T.  611;  6  W.  C.  C.  11,  where 
a  bricklayer  on  a  scaffold,  twenty-three  feet  from  the 
ground,  was  struck  by  lightning  and  it  was  held  that 
this  was  an  accident. 

Bite  of  cat  on  master^ s  premises  at  meal  time.  A  work- 
man was  taking  his  mid-day  meal  in  his  employer's 


TO  WHOM  ACT  APPLIES  103 

Arising  out  of  and  in  the  course  of  the  employment 

stable,  when  he  was  bitten  by  one  of  the  stable  cats. 
The  bite  resulted  in  blood  poisoning  and  it  became 
necessary  to  amputate  some  of  the  fingers.  It  was  held 
that  the  accident  arose  out  of  and  in  the  course  of  the 
employment.  Rowland  v.  Wright  (1908),  1  B.  W.  C.  C. 
192. 

Special  policeman  and  messenger  injured  while  going 
to  and  from  place  of  employment.  A  railway  policeman, 
a  part  of  whose  duties  it  was  to  take  cash  boxes  and 
deposit  the  contents  in  a  bank  in  the  town,  was  return- 
ing from  such  a  trip  when  he  was  crossing  a  railway 
track  over  a  way  which  was  sometimes  used  by  the 
employes.  An  engine  being  shunted  down  these  tracks 
hit  and  killed  the  policeman.  It  was  held  that  the 
accident  arose  out  of  and  in  the  course  of  the  employ- 
ment and  that  his  dependents  were  entitled  to  compen- 
sation. Grant  v.  Glasgow  and  South  Western  Railway 
Co.  (1907),  45  Scotch  L.  R.  128;  1  B.  W.  C.  C.  17. 

Suffocation  in  burning  house.  A  servant  residing  in 
her  mistress's  house  was  suffocated  in  her  bedroom 
through  a  fire  which  broke  out  in  the  house.  She 
shared  the  room  with  a  lame  cook,  and  she  and  the 
cook  were  suffocated.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment. 
Chitty  V.  Nelson  (1908),  2  B.  W.  C.  C.  496. 

Drawing  inference  from  unexplained  injuries.  An 
engine  driver,  over  sixty  years  old,  was  working  about 
the  engine  at  a  railway  station.  He  was  next  seen  lying 
between  the  engine  and  the  platform  with  his  two  legs 
doubled  up,  exhibiting  signs  of  agony,  and  he  died  a 
few  minutes  later.  There  was  no  evidence  to  show  how 
he  got  into  this  position,  but  there  was  evidence  to 
show  that  on  at  least  three  previous  occasions  when  the 


104    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

train  was  at  a  station,  the  deceased  had  collapsed  in 
a  faint,  and  had  lain  unconscious  for  some  minutes. 
A  few  days  before  the  occurrence  the  deceased  was 
examined  by  the  physician  of  the  company  and  was 
presumably  passed  as  physically  fit  for  his  position. 
The  County  Court  judge  held  that  the  accident  arose 
out  of  and  in  the  course  of  his  employment.  It  was 
held  that  there  was  sufficient  evidence  to  justify  the 
finding.  Fennah  v.  Midland  &  Great  Western  Railway 
of  Ireland  (1911),  45  Irish  L.  T.  192;  4  B.  W.  C.  C.  440. 
In  this  case  the  court  said:  ''The  judge  is  entitled  to 
draw  an  inference,  but  he  cannot  arrive  at  it  by  guess 
or  conjecture;  and  the  onus  is,  in  the  first  instance,  on 
the  applicant  to  furnish  evidence  from  which  an  in- 
ference in  the  applicant's  favor  can  be  legitimately 
drawn." 

A  train  of  three  cars  pushed  by  an  engine  overtook 
another  train  on  the  same  tracks,  and  the  two  trains 
ran  buffer  to  buffer  as  if  coupled.  The  brakeman  of  the 
rear  train  tried  to  get  on  the  front  train,  but  slipped 
between  the  buffers  and  was  killed.  There  was  no 
direct  evidence  as  to  his  reasons  for  trying  to  board  the 
front  train,  but  there  was  evidence  that  he  would  shortly 
have  had  to  alight  to  shift  some  points  (switches), 
and  that  it  was  much  easier  to  alight  from  the  front 
than  from  the  rear  train,  the  former  having  steps 
while  the  latter  had  none.  From  this  the  County 
Court  judge  drew  the  inference  that  the  attempt  was 
made  in  order  to  alight  more  easily,  and  therefore  held 
that  the  accident  arose  out  of  the  employment.  It  was 
held  on  appeal  that  the  County  Court  judge  was  en- 
titled to  draw  this  inference.  Astley  v.  R.  Evans  &  Co. 
(1911),  104  L.  T.  373;  4  B.  W.  C.  C.  209;  affirmed  by 


TO   WHOM   ACT   APPLIES  105 

Arising  out  of  and  in  the  course  of  the  employment 

the  House  of  Lords,  R.  Evans  &  Co.  v.  Astley  (1911),  4 
B.  W.  C.  C.  319. 

While  a  ship  was  on  the  high  seas  the  cook  fell  over- 
board and  was  drowned.  The  weather  was  perfectlj'^ 
calm  at  the  time.  It  was  daylight  and  the  ship  was 
steady.  There  was  no  evidence  to  show  how  the  de- 
ceased had  fallen  overboard.  It  was  held  that  the 
dependent  had  failed  to  discharge  the  onus  upon  her 
of  proving  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment  of  the  deceased,  there  being 
no  justification  for  inferring  that  the  accident  arose  out 
of  the  employment  because  it  was  admitted  that  it 
happened  in  the  course  of  the  employment.  Bender  v. 
Owners  of  Steamship  "ZenV  (1909),  100  L.  T.  639;  2 
B.  W.  C.  C.  22.  In  the  last  mentioned  case  one  of  the 
judges  stated  by  way  of  dictum  that  if,  on  a  stormy 
night,  one  of  the  watches  of  the  ship  was  missing,  the 
inference  to  be  drawn  would  be  that  the  most  natural 
cause  of  the  accident  was  the  increased  danger  to  which 
the  seaman  was  subjected  in  the  course  of  his  employ- 
ment, and  that  therefore  the  accident  arose  out  of  his 
employment. 

Commercial  travelers.  As  a  rule  commercial  travelers 
may  be  regarded  as  acting  in  the  course  of  their  employ- 
ment so  long  as  they  are  traveling  on  their  employer's 
business,  including  the  whole  period  of  time  between 
their  starting  from  and  returning  to  their  place  of 
business  or  home.  Dickinson  v.  Barmak  (1908),  124 
L.  T.  Newspaper,  403. 

Collector  going  from  house  to  house.  An  agent  who  is 
making  a  house-to-house  collection  of  premiums  and 
meets  with  accidental  injury  is  entitled  to  compensation. 
Refuge  Assurance  Co.  v.  Millar,  49  Scotch  L.  R.  67. 


106    Bradbury's  workmen's  compensation  law 


Arising  out  of  and  in  the  course  of  the  employment 

Collector  using  bicycle  in  employment  without  or  direc- 
tion or  prohibition  of  employer.  A  canvasser  and  col- 
lector, employed  to  go  round  calling  on  customers, 
usually  went  on  his  bicycle.  This  was  not  necessary, 
but  his  employers  who  knew  of  the  practice,  neither 
ordered  him  to  do  so,  nor  forbade  him  to  do  it.  While 
traveling  on  a  bicycle  he  collided  with  a  tramcar  and 
was  killed.  .It  was  held  that  the  accident  arose  out  of 
the  employment.  Pierce  v.  The  Provident  Clothing  and 
Supply  Co.  (1911),  104  L.  T.  473;  4.  B.  W.  C.  C.  242. 

A  salesman  and  collector  while  riding  in  a  street 
upon  a  bicycle,  in  the  course  of  his  employment,  was 
kicked  on  the  knee  by  a  passing  horse  and  injured.  It 
was  held  that  the  accident  arose  out  of  the  employ- 
ment. M'Neice  v.  Singer  Sewing  Machine  Company 
(1911),  48  Scotch  L.  R.  15;  4  B.  W.  C.  C.  351. 

Heart  failure.  A  workman  collapsed  at  his  work,  and 
died  the  same  day  from  angina  pectoris.  The  evidence 
was  that  his  heart  was  in  a  bad  state,  and  that  the 
attack  might  have  been  caused  by  exertion,  or  might 
have  been  due  to  natural  causes.  It  was  held,  reversing 
the  decision  of  the  County  Court  judge,  that  the  de- 
pendents had  not  discharged  the  onus  of  proving  that 
the  accident  arose  out  of  the  employment.  Hawkins  v. 
Powell's  Tillery  Steam  Coal  Co.  (1911),  104  L.  T.  365; 
4  B.  W.  C.  C.  178. 

Reaching  to  recover  pipe  dropped  from  wagon.  A 
workman  was  employed  as  a  laborer  in  connection  with 
loading  and  unloading  wagons,  and  accompanying 
them  while  being  hauled  by  a  traction  engine  from  one 
quarry  to  another.  While  sitting  on  a  wagon  which  was 
being  so  hauled,  he  dropped  his  pipe,  and,  in  attempt- 
ing to  get  down  to  recover  it,  he  lost  his  balance  and 


TO   WHOM   ACT   APPLIES  107 

Arising  out  of  and  in  the  course  of  the  employment 

fell  in  front  of  the  wheels  of  the  wagon,  which  went 
over  his  leg,  fatally  injuring  him.  It  was  held  that  the 
accident  arose  out  of  and  in  the  course  of  the  employ- 
ment. M^Lauchlan  v.  Anderson  (1911),  48  Scotch  L. 
R.  349;  4  B.  W.  C.  C.  376.  The  court  applied  the  rule 
laid  down  by  the  Lord  Chancellor  in  the  case  of  Moore 
V.  Manchester  Liners  (1910),  A.  C.  498,  as  follows: 
"I  think  an  accident  befalls  a  man  *in  course  of  his  em- 
ployment if  it  occurs  while  he  is  doing  what  a  man  so 
employed  may  reasonably  do  within  a  time  during 
which  he  is  employed,  and  at  a  place  where  he  may 
reasonably  be  during  that  time  to  do  that  thing."  The 
court  added  "a  workman  of  his  sort  may  reasonably 
smoke,  he  may  reasonably  drop  his  pipe,  and  he  may 
reasonably  pick  it  up  again." 

Cause  of  injury  not  incidental  to  employment.  A  lady's 
maid,  in  the  course  of  her  employment,  was  sewing  at 
an  open  window,  through  which  an  insect  flew  into  her 
face.  To  defend  her  eyes  she  quickly  put  up  her  hand, 
which  accidentally  struck  and  permanently  injured  her 
eye.  It  was  held  that  the  injury  was  not  a  personal 
injury  by  accident  arising  out  of  the  employment. 
Craske  v.  Wigan  (1909),  100  L.  T.  8;  2  B.  W.  C.  C. 
35. 

Rebuilding  station  not  employment  on  railway.  Re- 
l3uilding  stations  is  work  "merely  ancillary  or  incidental 
to  and  is  no  part  of  or  process  in  the  trade  or  business 
carried  on  by"  a  railway  company.  Pearce  v.  London 
and  South  Western  Ry.  (1900),  82  L.  T.  487;  2  W.  C.  C. 
47. 

Employment  in  a  refreshment  room  at  a  station  not  em- 
ployment on  railway.  Employment  in  a  refreshment 
room  at  a  railway  station  is  not  employment  on  or  in 


108    Bradbury's  workmen's  compensation  law 

Arising  out  of  and  in  the  course  of  the  employment 

or  about  a  railway.  Milner  v.  Great  Northern  Ry.  Co. 
(1900),  82  L.  T.  187;  2  W.  C.  C.  51. 

Going  to  designated  place  to  receive  pay.  A  workman 
engaged  as  a  laborer  on  the  public  roads  was  required 
to  go  for  his  pay  to  the  tramway  depot  situated  in  a 
public  road  some  distance  away.  The  workman  was 
paid  for  the  time  occupied  in  going  to  and  going  from 
the  pay  place.  When  returning  to  his  work,  after  re- 
ceiving his  wages,  he  mounted  a  tram  car,  but  finding 
that  it  did  not  travel  to  the  place  where  his  work  was 
situated,  he  got  off  and  was  struck  by  a  passing  cart 
and  injured.  It  was  held  by  the  Court  of  Appeal  in 
England  that  the  injury  was  one  arising  out  of  and  in 
the  course  of  the  man's  employment.  Nelson  v.  Belfast 
Corporation  (1908),  42  Irish  L.  T.  223;  1  B.  W.  C.  C. 
158. 

A  workman  will  be  held  to  be  acting  in  the  course  of 
his  employment,  when,  having  ceased  actual  work,  he 
returns  to  the  premises  to  obtain  his  pay.  Riley  v. 
W.  Holland  &  Sons  (1911),  1  K.  B.  1029;  4  B.  W.  C.  C. 
155.  Even  though  on  such  ceasing  of  actual  work  the 
relation  of  master  and  servant  is  terminated.  Riley  v. 
W.  Holland  and  Sons  (1911),  supra;  Molloy  v.  South 
WaUs  Anthracite  Colliery  Co.  (1910),  4  B.  W.  C.  C. 
65. 

A  mill-hand,  whose  employment  had  ended,  attended 
at  the  employer's  mill  to  receive  her  wages  a  few  days 
later,  in  accordance  with  the  usage  of  the  trade.  She 
met  with  an  accident  while  leaving.  It  was  held  that 
the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. Riley  v.  W.  Holland  &  Sons  (1911),  104 
L.  T.  371;4B.W.  C.  C.  155. 

A  miner  who  left  off  work  at  5  a.  m.  on  Saturday 


TO   WHOM   ACT  APPLIES  109 

Arising  out  of  and  in  the  course  of  the  employment 

morning,  but  would  have  resumed  work  on  the  Sunday 
night  following,  went  to  the  works  at  12.30  mid-day  on 
Saturday  to  receive  his  wages,  and  while  proceeding  on 
his  employers'  premises  with  this  purpose  he  was  in- 
jured by  a  railway  engine  which  ran  through  the  em- 
ployers' premises;  it  was  held  that  the  accident  arose 
out  of  and  in  the  course  of  his  employment.  Lowry  v. 
Sheffield  Coal  Co.  (1907),  24  T.  L.  R.  142;  1  B.  W.  C. 
C.  1. 

Where  a  workman  was  required  to  go  in  a  tram  car  to 
a  depot,  situated  on  a  public  road  some  distance  away 
from  his  work  to  secure  his  pay  and  he  received  wages 
during  the  time  he  was  on  the  journey,  it  was  held  that 
a  personal  injury  received  by  the  workman  by  being 
hit  by  a  wagon  when  getting  ofif  the  wrong  tram  car 
which  he  had  entered  by  mistake,  was  an  injury  arising 
out  of  and  in  the  course  of  his  employment.  Nelson  v. 
Belfast  Corporation  (1908),  42  Irish  L.  T.  223;  1  B.  W. 
C.  C.  158. 

A  colher  received  his  pay-note  on  Saturday.  Being 
dissatisfied  with  the  amount,  he  spoke  to  the  manager, 
who  referred  him  to  the  under-manager.  The  latter 
could  not  be  seen  until  Monday.  The  collier  came  on 
Monday  at  mid-day,  not  intending  to  resume  work  un- 
less the  dispute  was  settled  in  his  favor,  and  saw  the 
under-manager,  who  did  not  give  in.  The  collier  then 
proceeded  to  leave,  but  was  knocked  down  by  a  coal 
wagon  and  killed.  It  was  held  that  the  accident  did 
not  arise  out  of,  nor  in  the  course  of  the  employment. 
Phillips  V.  Williams  (1911),  4  B.  W.  C.  C.  143. 

Returning  to  place  of  employment  to  get  tools.  A  work- 
man a  few  days  after  leaving  his  work  obtained  leave  to 
go  down  into  the  mine  to  bring  up  his  tools,  and  while 


110    Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

there  for  that  purpose  met  with  an  accident.  The 
County  Court  judge  found  that  the  accident  arose  out 
of  and  in  the  course  of  the  man's  employment  with  the 
colHery  owners,  and  awarded  him  compensation.  The 
employer  appealed  on  the  ground  that  the  judge  had 
misconceived  the  facts.  The  employer  contended  that 
the  finding  of  fact  should  have  been  on  the  evidence 
that  the  workman  had  ceased  to  be  their  servant,  and 
had  met  with  the  accident  while  in  the  mine  on  his  own 
business.  The  Court  of  Appeal  decided  against  the 
employer  on  the  ground  that  the  appellate  court  had  no 
jurisdiction  to  interfere  with  the  findings  of  fact  of  the 
County  Court.  Molloy  v.  South  Wales  Anthracite 
Colliery  Co.  (1910),  4  B.  W.  C.  C.  65. 

Remaining  on  property  after  suspension  from  work.  A 
collier  after  he  was  suspended  from  work  remained  in  a 
portion  of  the  mines  where  he  was  told  not  to  be  and 
there  met  with  an  accident  about  two  hours  after  his 
suspension.  It  was  held  that  the  accident  arose  out 
of  and  in  the  course  of  the  employment.  Smith  v. 
South  Normanton  Colliery  Co.  (1902),  88  L.  T.  5;  5 
W.  C.  C.  14. 

6.  Who  is  a  "  workman  "  within  the  meaning  of  the 
Compensation  Acts. 
Various  questions  have  arisen  between  partners, 
share-workers,  contractors  and  sub-contractors  and 
others  as  to  when  a  man  is  a  '^  workman,"  or  an  "em- 
ploy6,"  so  as  to  be  entitled  to  compensation  in  case  of 
injury.  The  old  decisions  on  the  question  of  when  the 
relation  of  master  and  servant  exists  are,  of  course,  to 
a  certain  extent,  applicable  here.  The  decisions  on  the 
subject  arising  directly  under  the  compensation  prin- 


TO   WHOM   ACT   APPLIES  111 

Who  is  a  "  workman" 

ciple  have  been  cited  below.  Of  course  it  does  not 
necessarily  follow  that  the  compensation  principle 
applies  to  all  cases  where  the  relation  of  master  and 
servant,  or  employer  and  employe,  exists.  Some  of  the 
acts  specifically  exclude  certain  occupations  such  for 
example  as  farm  laborers,  domestic  servants  and  casual 
employes.  Others  only  apply  to  certain  hazardous 
occupations  leaving  all  others  under  the  old  employers' 
liability  laws.  The  particular  statute  under  which  the 
question  arises  must  first  be  consulted.  After  this  is 
done  a  study  of  the  cases  cited  hereinafter  will  mate- 
rially aid  the  practitioner  in  arriving  at  a  correct  con- 
clusion. 

Workman  injured  before  act  takes  effect  but  dies  after 
statute  effective.  A  stereotyper  in  the  employment  of  a 
newspaper,  showed,  early  in  1907,  symptoms  of  lead 
poisoning.  He  finally  left  the  employment  on  June  22, 
1907,  and  eventually  died  on  September  14,  1907.  The 
Act  of  1906  came  into  operation  on  July  1,  1907.  It 
was  held  that  the  provisions  of  the  Act  were  not  ap- 
plicable, since  the  deceased  was  not  at  the  date  of  the 
commencement  of  the  Act  in  the  employment  of  the 
respondents,  or  of  any  one  else,  and  that  accordingly 
his  widow  was  not  entitled  to  compensation.  Greenhill 
V.  The  Daily  Record,  Glasgow  (1909),  46  Scotch  L.  R. 
483;2B.  W.  C.  C.  244. 

Unauthorized  employment  by  agent  of  employer.  An 
injured  man  was  engaged  by  another  workman.  The 
employer  of  such  workman  only  authorized  him  to 
employ  a  boy.  It  was  held  that  the  employment  of  an 
old  man,  when  the  employer  only  authorized  the  en- 
gagement of  a  boy,  prevented  the  applicant  being  held 
to  be  a  workman  under  a  contract  of  service  with  the 


112     Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

respondent.  M'Clelland  v.  Todd  (1909),  43  Irish  L.  T. 
J.  75;  2  B.  W.  C.  C.  472. 

Member  of  employer's  family.  A  son,  employed  by 
his  father,  lived  with  him  and  paid  him  board  and 
lodging.  He  was  injured  while  absent  for  several 
weeks  on  his  father's  business.  It  was  held  that  he  was 
a  member  of  his  employer's  family,  dwelling  in  his 
house,  and  was  therefore  not  a  workman  within  the 
Act.  M'Dougall  v.  M'Dougall  (1911),  48  Scotch  L.  R. 
315;4B.  W.  C.  C.  373. 

Vessel  worked  on  shares.  Two  decisions  in  the  Court 
of  Appeal  in  England  in  which  different  decisions  were 
reached  by  the  same  judges,  have  left  in  some  doubt  the 
question  whether  the  master  of  a  ship  who  sails  the 
same  on  shares  with  the  owners,  is  an  employe  of  the 
owners.  In  the  case  of  Boon  v.  Quance,  No.  1  (1909), 
102  L.  T.  443;  3  B.  W.  C.  C.  106,  the  Court  of  Appeal 
of  England  held  that  the  master  was  not  the  employe 
of  the  owner.  In  that  case  the  captain,  who  sailed  a 
small  vessel  with  a  crew  of  three  under  the  thirds  or 
sharing  system,  was  at  liberty  to  take  any  cargoes  to 
any  place  he  pleased,  the  owner  receiving  one-third  of 
the  gross  receipts  and  doing  necessary  repairs  to  the 
ship.  The  captain  received  the  remaining  two-thirds, 
and  had  to  pay  and  feed  the  crew  (whom  he  engaged) 
and  also  pay  harbor  dues.  The  vessel  went  down  with 
all  hands  and  the  captain's  dependents  claimed  com- 
pensation. It  was  held  that  there  was  no  contract  of 
service  between  the  captain  and  the  owners  and  conse- 
quently the  dependents  were  not  entitled  to  compensa- 
tion. 

In  the  subsequent  case  of  Jones  v.  Owners  of  the  Ship 
"Alice  and  Eliza"  (1910),  3  B.  W.  C.  C.  495,  the  crew 


TO   WHOM   ACT   APPLIES  113 

Who  is  a  "workman" 

of  a  small  schooner  consisted  of  the  captain,  a  mate  and 
sometimes  a  boy.  The  master,  in  returning  to  the 
schooner  at  night,  fell  from  the  dock  and  was  drowned. 
The  claimant's  evidence  was  that  the  captain  received 
two-thirds  of  the  income  from  the  operation  of  the 
vessel  for  his  services.  The  owner  did  not  submit  any 
evidence,  but  contended  that  under  the  doctrine  an- 
nounced in  the  case  of  Boon  v.  Quance,  No.  1,  supra, 
there  was  no  contract  of  hiring  and  that  therefore  the 
captain's  dependents  could  not  maintain  a  right  to  com- 
pensation. The  court  awarded  compensation  neverthe- 
less, distinguishing  the  two  cases.  The  hne  of  demarca- 
tion between  them  seems  to  be  that  in  the  Boon  case 
the  evidence  was  that  the  captain  had  full  control  of 
the  ship  and  paid  to  the  owner  one-third  of  the  receipts. 
While  in  the  Jones  case  the  only  evidence  before  the 
court  was  that  the  master  was  remunerated  by  the  pay- 
ment to  him  of  two-thirds  of  the  gross  receipts.  The  court 
commented  on  the  failure  of  the  owner  to  give  any 
evidence  at  the  trial  and  said  that  under  the  testimony 
given  there  was  a  distinction  between  the  two  cases. 
In  a  later  case  the  doctrine  of  the  decision  in  Boon  v. 
Quance  is  reaffirmed.  Thus  a  vessel  was  sailed  under 
the  ''sharing  system."  The  captain  had  authority  to 
trade  between  any  ports  he  pleased,  the  owner  having 
no  control  over  him  in  this  matter.  The  owner  re- 
ceived one-half  of  the  gross  receipts,  after  deducting 
port  charges,  etc.,  and  the  captain  retained  the  re- 
mainder, out  of  which  he  paid  the  crew's  wages.  It 
was  held  that  there  was  no  contract  of  service  between 
the  owner  and  the  captain,  and  that  the  latter's  widow 
was  not  entitled  to  compensation.  Hughes  v.  Postle- 
thwaite  (1910),  4  B.  W.  C.  C.  105. 
H 


114     Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

A  firm  of  fish-curers  engaged  A  to  work  a  *'flitboat" 
belonging  to  them,  and  authorized  him  to  find  another 
man  to  go  along  with  him.  A  engaged  B  to  work  under 
him  on  the  boat,  which  was  not  in  any  sense  a  fishing 
boat,  but  was  used  for  carrying  cargo  between  the  cur- 
ing stations  and  vessels  lying  off  shore  and  landing 
goods  from  steamers.  A  and  B  were  to  be  remunerated 
by  one-third  each  of  the  gross  earnings  of  the  boat,  the 
remaining  third  going  to  the  owners.  The  boat  was 
maintained  by  the  owners,  and  both  the  men  and  the 
boat  were  subject  to  their  orders.  When  not  required 
by  the  owners  he  worked  for  other  curers,  such  work 
being  undertaken  by  A  as  skipper  on  behalf  of  the  boat, 
and  the  rates  charged  being  the  same  as  those  paid  by 
the  owners  to  the  boat  for  similar  work.  When  the 
men  were  not  employed  afloat,  the  owners,  whenever 
possible,  supplied  them  with  work  ashore.  No  part  of 
the  capital  embarked  was  supplied  by  A  or  B,  nor  were 
they  liable  for  any  loss  that  might  be  incurred.  In  the 
course  of  his  employment  as  boatman,  B  was  drowned 
and  it  was  held  that  he  was  not  a  partner  but  a  work- 
man in  the  sense  of  the  Act,  and  therefore  his  depend- 
ents were  entitled  to  compensation.  Jamieson  v.  Clark 
(1908),  46  Scotch  L.  R.  73;  2  B.  W.  C.  C.  228. 

A  member  of  the  crew  of  a  trawler,  which  is  worked 
on  shares,  and  who  is  therefore  a  coadventurer,  is  not 
entitled  to  compensation  where  he  does  some  other  act 
voluntarily  which  is  in  connection  with  his  regular 
work.  Whelan  v.  Great  Northern  Steam  Fishing  Co. 
(1909),  100  L.  T.  912;  2  B.  W.  C.  C.  235. 

A  person  who  owned  ten  sixty-fourth  shares  of  a 
trading  schooner  was  employed  as  a  master  by  the 
managing  owner  and  met  his  death  while  in  the  course 


TO   WHOM   ACT   APPLIES  115 

Who  is  a  "workman" 

of  his  employment.  It  was  held  that  the  absence  of 
any  proof  of  partnership  or  joint-adventure  in  a  course 
of  trading,  the  master  was  a  workman  and  his  de- 
pendents were  entitled  to  recover  compensation  from 
the  managing  owner.  Carswell  v.  Sharpe  and  Others 
(1910),  47  Scotch  L.  R.  335;  3  B.  W.  C.  C.  552. 

An  engineer,  on  a  steam  fishing  vessel,  who  was  in- 
jured, was  remunerated  by  ^/24  share  of  the  net  profits 
of  a  catch,  with  a  guarantee,  by  the  owners  of  the  vessel, 
that  should  his  profit  fall  short  of  30s.  a  week,  they 
would  make  it  up  to  that  amount.  It  was  held  that  the 
workman  was  "remunerated by  a  share,"  and  therefore 
not  entitled  to  compensation,  as  the  word  ''solely"  is 
not  to  be  read  into  the  §  7  (2)  of  the  Act.  Admiral 
Fishing  Co.  v.  Robinson  (1910),  102  L.  T.  203;  3  B.  W. 
C.  C.  247. 

Where  one  G,  a  member  of  a  fishing  vessel,  was  in- 
jured while  the  vessel  was  at  sea  and  engaged  in  fishing, 
and  it  appeared  that  he  was  compensated  by  a  share  of 
the  receipts  from  the  trip,  based  as  follows:  From  the 
gross  price  of  the  fish  sold 'after  any  trip  the  owners  of 
the  vessel  were  entitled  to  deduct  commission,  discount, 
and  other  expenses  pertaining  to  the  trip,  and  the  net 
balance  remaining  was  then  divided  into  fourteen 
shares,  of  which  G  received  one-eighth  share.  While 
in  port  and  employed  in  cleaning  or  making  repairs  he 
was  paid  a  daily  wage  of  5s.  It  was  held  that  G  was 
remunerated  by  a  share  of  the  profits  of  the  gross  earn- 
ings of  the  working  of  the  fishing  vessel,  and  was  not 
entitled  to  a  recovery  of  compensation  under  §  7  (2)  of 
the  Act,  Aberdeen  Steam  Trawling  &  Fishing  Co.  v. 
Gill  (1907),  45  Scotch  L.  R.  247;  1  B.  W.  C.  C.  274. 

iQriver  of  taxi-cab  operated  on  shares.    A  taxi-cab  driver 


116     Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

occasionally  took  a  cab  out  for  the  day  from  the  owners' 
yard.  He  paid  the  owners  75%  of  his  receipts,  and 
accepted  certain  conditions  as  to  the  use  of  a  uniform 
and  the  purchase  of  petrol.  There  was  little  or  no  con- 
trol exercised  over  him,  although  the  words  ''servant" 
and  ''dismissal"  occurred  on  notices  issued  by  the 
owners  to  the  drivers  and  the  public.  It  was  held,  by 
the  House  of  Lords,  that  the  question  of  whether  or  not 
he  was  a  workman  was  one  of  fact  and  that  there  was 
evidence  to  support  the  finding  of  the  County  Court 
judge  that  the  contract  between  the  parties  was  not  a 
contract  of  service  and  that  the  driver  was  accordingly 
not  a  workman  within  the  Compensation  Act.  Bates- 
Smith  V.  General  Motor  Cab  Co.  (1911),  A.  C.  188;  4  B. 
W.  C.  C.  249,  aff'g  (1910),  3  B.  W.  C.  C.  500.  In  the 
last-mentioned  case  it  was  remarked  that  it  might  well 
be  that,  as  between  third  parties,  the  driver  was  the 
agent  of  the  proprietor,  whereas  between  themselves 
the  relation  was  that  of  a  bailor  and  bailee. 

A  taxi-cab  driver  took  out  a  cab  owned  by  the  re- 
spondents from  their  yard  each  day.  The  contract  be- 
tween the  parties  was  that  the  driver  paid  over  to  the 
respondents  75%  of  his  daily  takings,  retaining  25% 
for  himself,  less  the  price  of  petrol  which  he  purchased 
from  the  respondents.  There  was  a  considerable 
amount  of  evidence  as  to  the  relationship  between  the 
parties.  The  County  Court  judge  held  that  the  driver 
was  employed  by  the  respondents  and  that  the  contract 
was  one  of  service.  It  was  held  that  there  was  no 
evidence  to  justify  this  finding  and  compensation  was 
denied  by  the  Court  of  Appeal.  Doggett  v.  Waterloo 
Taxi-Cab  Co.  (1910),  102  L.  T.  874;  3  B.  W.  C.  C.  371. 
In  the  last-mentioned  case  the  court  said:  "The  posi- 


TO   WHOM   ACT   APPLIES  117 

Who  is  a  "workman" 

tion  of  the  driver  of  a  taxi-cab  is,  in  most  respects, 
identical  with  the  position  of  the  driver  of  a  horse-cab. 
It  has  been  held  by  a  series  of  authorities  by  which  we 
are  bound  that  the  relation  of  a  proprietor  of  a  horse- 
cab  and  a  driver  is  not  in  ordinary  circumstances  one 
of  master  and  servant;  although  as  between  a  member 
of  the  public  injured  through  the  negligence  of  the 
driver  the  proprietor  is  liable.  *  *  *  The  contract  be- 
tween the  proprietor  and  the  driver  is  for  the  day  on 
which  the  taxi-cab  is  taken  out,  as  the  learned  judge 
finds.  The  driver  is  not  bound  to  come  the  next  day, 
and  if  he  does  come  the  proprietor  is  not  bound  to  let 
him  have  a  taxi-cab.  He  is  not  paid  anything  as  wages. 
He  is  accountable  to  the  proprietor  for  75%  of  the  tak- 
ings, his  own  remuneration  being  a  sum  equal  to  25% 
of  the  takings.  This  mode  of  remuneration  tends 
against,  and  not  in  favor  of,  the  view  that  he  is  a  serv- 
ant. The  proprietor  exercises  no  control  over  the 
driver,  who  can  go  when  and  where  he  pleases.  *  *  * 
I  think  that  the  relation  was  that  of  bailment,  although 
it  may  possibly  be  contended  that  the  parties  were  co- 
adventurers.  In  the  above  observations  I  dealt  only 
with  the  facts  of  this  particular  case.  There  may  be 
cases  in  which  the  proprietor  of  a  taxi-cab  exercises  such 
an  amount  of  control  over  the  driver  as  to  justify  the 
conclusion  that  the  relation  of  master  and  servant 
exists."  The  court  further  remarked  that  the  case  of 
Rex  V.  Solomons  (1909),  2  K.  B.  980,  apparently  fur- 
nished an  instance  of  the  exception. 

Independent  contractor.  A  man  who  verbally  agreed 
to  break  steel  and  clear  cinders  at  so  much  per  ton,  and 
who  employed  five  or  six  men  to  assist  him  and  was 
paid  weekly,  was  held  to  be  an  independent  contractor 


118    Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

and  not  a  workman  within  the  meaning  of  the  act. 
Vamplew  and  Others  v.  Parkgate  Iron  &  Steel  Co.  (1903), 
88L.  T.  756;5W.  C.  C.  114. 

A  man  was  engaged  by  a  firm  of  timber  merchants  to 
bring  a  horse  belonging  to  him  and  drag  logs  of  timber 
from  the  side  of  a  ship  which  was  being  unloaded  in  the 
harbor  to  a  place  where  the  logs  were  stored.  He  re- 
ceived a  certain  sum  per  day  for  himself  and  his  horse, 
and  he  might  have  received  that  sum  had  he  employed 
some  one  else  to  drive  the  horse.  He  was  under  no 
obligation  to  come  on  any  particular  day  and  he  was 
told  not  to  come  until  he  was  wanted.  It  was  held  that 
he  was  not  a  workman  in  the  sense  of  the  Act,  but  an 
independent  contractor  and  therefore  not  entitled  to 
compensation.  Chisholm  v.  Walker  &  Co.  (1908),  46 
Scotch  L.  R.  24;  2  B.  W.  C.  C.  261. 

A  person  who  contracts  to  do  or  get  done  work  at  a 
fixed  price  is  not  a  workman  within  the  meaning  of  the 
Act.    Simmons  v.  Faulds  (1901),  3  W.  C.  C.  169. 

A  quarryman  was  employed  under  a  written  agree- 
ment that  he  should  be  paid  a  certain  sum  per  ton  of 
material  worked,  his  employers  supplying  him  with  the 
necessary  tools.  He  engaged  and  discharged  men  to 
work  under  him.  He  ended  his  employment,  but  re- 
sumed it  again  upon  his  employers  assuring  him  that  he 
should  be  compensated  in  case  he  was  injured  by  acci- 
dent. It  was  held  that  there  was  evidence  that  he  was 
a  workman  within  the  meaning  of  the  Act  and  not  an 
independent  contractor.  Evans  v.  Penwyllt  Dinas 
Silica  Brick  Co.  (1901),  4  W.  C.  C.  101. 

Partners.  When  partners  entered  into  an  agreement 
that  one  of  their  number  should  act  as  a  working  fore- 
man and  he  received  33s.  a  week  for  his  services  as 


TO  WHOM   ACT  APPLIES  119 

Who  is  a  "workman" 

such  in  addition  to  his  share  of  the  profits  it  was  held 
that  his  widow  was  not  entitled  to  compensation  from 
the  other  partners  because  of  the  death  of  such  foreman 
partner  by  accident,  as  he  was  not  a  workman  within 
the  meaning  of  the  Act.  Ellis  v.  Ellis  &  Co.  (1905),  92 
L.  T.  718;  7  W.  C.  C.  97. 

Policeman  injured  while  acting  as  fireman.  Where  a 
police  constable  was  acting  as  a  fireman  under  an  Act 
of  Parliament,  it  was  held  that  he  was  acting  as  a  mem- 
ber of  a  police  force,  and  was  not  a  workman  within 
the  meaning  of  §  13  of  the  Act.  Sudell  v.  Blackburn 
Corporation  (1910),  3  B.  W.  C.  C.  227. 

Manager.  A  certified  manager  of  a  colliery  receiving 
£400  a  year  with  house  rent  free,  who  does  no  manual 
labor,  is  not  a  workman.  Simpson  v.  Ebbw-Vale  Steel, 
Iron  &  Coal  Co.  (1905),  92  L.  T.  282;  7  W.  C.  C.  101. 

Graduate  chemist.  A  graduate  and  master  of  science 
of  Manchester  University  engaged  under  a  written  con- 
tract as  a  chemist  in  a  chemical  factory,  whose  duties 
were  largely  the  making  of  laboratory  experiments  and 
who,  in  connection  therewith,  did  considerable  manual 
labor  was  held  not  to  be  a  workman  within  the  British 
Act  of  1897.  Bagnall  v.  Lemnstein  (1906),  96  L.  T.  184; 
9  W.  C.  C.  100. 

Law  writer.  Injury  during  lunch  hour.  A  law  writer 
was  injured  in  the  street  during  the  hour  allowed  for 
his  lunch.  It  was  held  that  a  law  writer  was  within  the 
act,  but  that  the  luncheon  hour  is  not  part  of  his  period 
of  employment,  and  therefore  compensation  was  re- 
fused. McKrill  V.  Howard  &  Jones  (1909),  2  B.  W.  C. 
C.  460. 

Professional  football  player.  A  professional  football 
player  is  a  workman  within  the  meaning  of  §  13  of  the 


120     Bradbury's  workmen's  compensation  law 

Who  is  a  "workman" 

Act.    Walker  v.  Crystal  Palace  Football  Club  (1909),  101 
L.  T.  645;  3  B.  W.  C.  C.  53. 

Persons  employed  by  charitable  organization  out  of 
charity.  A  charitable  institution  which  had  instituted  a 
labor  yard,  and  which,  in  return  for  work  done  therein 
to  persons  out  of  employment,  gave  such  persons  their 
board  and  lodging  and  occasionally  trifling  sums  of 
money,  was  held  not  to  be  employers  as  to  one  of  the 
persons  who  had  performed  work  under  the  rules  stated, 
as  the  applicant  had  not  proved  a  contract  of  service 
between  himself  and  the  institution.  The  question 
whether  or  not  the  institution  carried  on  a  trade  or 
business  was  left  open.  Burns  v.  Manchester  (^  Salford 
Wesleyan  Mission  (1908),  1  B.  W.  C.  C.  305.  A  distress 
committee,  which  provides  temporary  work  for  an 
applicant  is  an  employer  within  the  meaning  of  the 
Workmen's  Compensation  Act  and  a  person  injured 
is  entitled  to  compensation.  Gilroy  v.  Mackie  and 
Others  {Leith  Distress  Committee)  (1909),  46  Scotch  L. 
R.  325;  2  B.  W.  C.  C.  269.  The  Central  Body  under 
the  Unemployed  Workmen  Act  of  1905,  are  "em- 
ployers" within  the  meaning  of  the  Compensation  Act, 
and  when  a  workman  employed  by  them  is  killed,  his 
widow  is  entitled  to  compensation.  Porton  v.  Central 
(Unemployed)  Body  for  London  (1908),  100  L.  T.  102; 
2  B.  W.  C.  C.  296.  A  blind  man  was  injured  while  em- 
ployed in  the  industrial  department  of  an  institute  for 
the  blind.  This  department  was  supported  partly  by 
charitable  contributions  received  by  the  institute.  The 
institute  gave  the  man,  in  respect  of  his  services,  board, 
lodging,  and  5  shillings  a  month,  and  received  on  his 
account  charitable  and  parochial  assistance  which  came 
to  a  few  pounds  less  than  the  amount  it  expended  on 


TO   WHOM   ACT   APPLIES  121 

Who  is  a  caaual  employ^ 

him.  It  was  held  that  the  man  was  a  workman.  Mac- 
Gillivray  v.  The  Northern  Counties  Institute  for  the  Blind 
(1911),  48  Scotch  L.  R.  811;  4  B.  W.  C.  C.  429. 

A  dispensary  medical  officer  employed  by  Guardians 
of  the  Poor  was  held  not  to  be  a  workman,  as  there  was 
no  contract  of  service  between  him  and  an  employer 
within  the  meaning  of  §  13  of  the  Compensation  Act, 
and  that  therefore  when  such  medical  officer  was  killed, 
his  dependents  were  not  entitled  to  compensation. 
Murphy  v.  Enniscorthy  Board  of  Guardians  (1908),  42 
Irish  L.  T.  246;  2  B.  W.  C.  C.  291. 

7.  Who  is  agricultural  worker. 

A  skilled  carpenter  employed  on  a  farm  as  handy 
man,  doing  fence-work,  harvesting  and  rick-making, 
and  for  three  or  four  months  a  year  acting  as  game- 
keeper may  be  a  workman  in  agriculture.  Smith  v. 
Coles  (1905),  93  L.  T.  754;  8  W.  C.  C.  116. 

8.  Who  is  a  casual  employ^. 

The  word  ''casual"  is  from  the  Latin  casualis, 
meaning  an  accident;  happening  or  coming  to  pass 
without  design  and  without  being  foreseen  or  expected; 
coming  without  regularity.  The  word  ''casualty" 
has  the  same  origin.  The  application  of  the  word  in  the 
British  Compensation  Law  has  caused  much  discussion. 

Window  cleaner.  The  employment  of  a  window 
cleaner,  at  irregular  intervals,  to  clean  the  windows  of 
a  dwelling  house,  although  the  same  person  may  have 
been  engaged,  when  required,  for  a  period  of  some 
years,  is  casual  employment  only.  Hill  v.  Begg  (1908), 
1  B.  W.  C.  C.  320.  A  window  cleaner  had  been  for 
some  years  in  the  habit  of  cleaning,  about  once  a 
month,  the  windows  of  the  respondent's  private  house. 


122     Bradbury's  workmen's  compensation  law 

Who  is  a  casual  employ^ 

The  respondent  was  a  medical  man,  and  used  some 
part  of  his  house  for  the  purposes  of  the  profession.  No 
formal  contract  existed,  but  the  window  cleaner  called 
at  or  about  the  expected  periods  and  was  admitted  and 
did  the  work.  It  was  found,  as  a  fact,  that  the  respond- 
ent might  at  any  time  have  engaged  any  other  window 
cleaner,  or  refused  admission  to  the  window  cleaner  in 
question.  It  was  held  that  the  employment  was  of  a 
casual  nature  and  was  not  employment  for  the  purposes 
of  the  employer's  trade  or  business.  Rennie  v.  Reid 
(1908),  45  Scotch  L.  R.  814;  1  B.  W.  C.  C.  324. 

Laborer  employed  to  do  whitewashing.  A  laborer  em- 
ployed to  do  whitewashing  and  to  be  paid  according  to 
the  amount  of  work  done,  the  employer  supplying  the 
laborer  with  money  to  buy  the  necessary  materials,  is  a 
workman  in  whose  favor  compensation  should  be 
awarded.  Bargewell  v.  Daniel  (1907),  123  L.  T.  J.  487; 
9  W.  C.  C.  142. 

Woman  employed  occasionally  as  domestic.  A  woman 
was  employed  to  work  at  a  particular  house  on  Friday 
of  every  week  and  on  Tuesdays  in  alternate  weeks. 
She  suffered  personal  injuries  in  the  course  of  such  em- 
ployment. It  was  held  that  the  employment  was  not 
of  a  casual  nature  and  that  the  woman  was  a  workman 
within  the  meaning  of  the  Act,  and  therefore  entitled 
to  compensation.  Dewhurst  v.  Mather  (1908),  1  B.  W. 
C.  C.  328. 

Carpenter  employed  to  do  repairs.  A  carpenter  was 
employed  to  do  repairs  in  the  private  house  of  the  re- 
spondent, and  after  these  repairs  were  finished  was  en- 
gaged to  cut  down  some  trees  in  the  grounds  near  the 
house.  While  engaged  in  the  latter  work  he  was  killed, 
and  it  was  held  that  the  employment  was  of  a  casual 


TO   WHOM   ACT  APPLIES  123 

Serious  and  willful  misconduct 

nature  and  compensation  was  refused.  McCarthy  v. 
Norcott  (1908),  43  Irish  L.  T.  17;  2  B.  W.  C.  C.  279. 

Bricklayer  employed  to  repair  farm  building.  A 
farmer  required  some  tiles  put  on  the  roof  of  his  granary 
and  employed  a  bricklayer  to  put  them  on.  During  the 
work  the  bricklayer  was  injured  and  he  afterward 
claimed  compensation.  It  was  held  that  although  the 
work  was  of  a  casual  nature  it  was  for  the  purpose  of 
the  employer's  trade  or  business,  and  therefore  the 
workman  was  entitled  to  receive  compensation.  Blyth 
V.  Sewell  (1909),  2  B.  W.  C.  C.  476. 

Repairing  private  residence.  Where  a  casual  workman 
was  employed  to  assist  a  slater  in  repairing  the  roof  of 
a  house  used  solely  for  the  purposes  of  business,  and  was 
killed  by  falling  from  the  roof,  it  was  held  that  his  de- 
pendents were  entitled  to  compensation.  Johnston  v. 
Monasterevan  General  Store  Co.  (1908),  42  Irish  L.  T. 
268;  2  B.  W.  C.  C.  183.  In  the  course  of  the  opinion, 
in  the  last-mentioned  case,  it  is  said:  ''The  Act  of  1906 
widened  the  liability  of  employers,  and  the  scope  of  the 
Act  was  intended  to  include  new  classes  of  workmen  in 
addition  to  those  benefited  by  previous  acts.  Suppose 
the  shutters  of  a  shop  got  jammed  and  could  not  be 
opened,  and  a  carpenter  or  locksmith  was  employed  to 
open  them,  it  is  manifest  that  that  would  be  for  the 
purposes  of  the  employer's  business." 

9.  Serious  and  willful  misconduct. 

All  the  Compensation  Acts  of  the  various  States  con- 
tain some  provision  on  this  subject,  but  there  is  no 
uniformity  in  such  provisions.  Whatever  the  language 
used  the  idea  of  denying  compensation  if  serious  and 
willful  misconduct  causes  the  injury,  is  present  in  all  of 


124     Bradbury's  workmen's  compensation  law 


Serious  and  willful  misconduct 


these  statutes.  The  decisions  of  the  English,  -Irish, 
Scotch  and  Canadian  courts  therefore  are  especially 
applicable  to  this  feature  of  the  laws  of  the  various 
commonwealths . 

Where  a  workman  knowingly  breaks  a  rule  made  by 
the  employer  in  the  interests  of  the  safety  of  the  work- 
men and  for  their  own  protection  and  that  of  the  public 
such  act  on  his  part  is  evidence  of  serious  and  willful 
misconduct  within  the  meaning  of  the  Act.  Bist  v. 
London  &  South  Western  Ry.  Co.  (1907),  96  L.  T.  750; 
9  W.  C.  C.  19.  The  last-mentioned  case  was  decided 
by  the  House  of  Lords.  The  accident  occurred  on 
March  4,  1905,  prior  to  the  enactment  of  the  present 
Compensation  Law.  In  that  case  an  engine-driver  was 
killed  by  being  hit  by  a  bridge  over  the  track.  He  had 
climbed  back  on  the  tender,  for  the  purpose,  it  was  con- 
tended, of  getting  a  better  quality  of  coal,  to  make  the 
engine  steam  better  so  lost  time  could  be  made  up.  The 
company  had  issued  a  rule  forbidding  the  driver  or 
fireman  to  leave  the  running  board  while  the  engine  was 
in  motion.  The  court  held  that  the  violation  of  this 
rule  was  such  serious  and  willful  misconduct  as  pre- 
cluded the  dependents  of  the  driver  from  recovering 
compensation.  The  section  of  the  British  Compensa- 
tion Act  under  which  this  decision  was  made  was 
amended  in  the  revision  of  1906  [§  I,  (2)  (c)]  by  adding 
the  words  in  italics  in  the  paragraph  below,  making  it 
read  as  follows: 

"If  it  is  proved  that  the  injury  to  a  workman  is 
attributable  to  the  serious  and  willful  misconduct  of 
the  workman,  any  compensation  claimed  in  respect  of 
that  injury  shall,  unless  the  injury  results  in  death  or 
serious  and  permanent  disablement,  be  disallowed." 


TO   WHOM   ACT   APPLIES  125 

Serious  and  willful  misconduct 

The  words  in  italics  have  added  a  feature  to  the 
British  Act  which  has  been  characterized  as  follows: 

''If  a  boiler  was  exploded  through  the  criminal 
carelessness  of  an  intoxicated  engineer  or  fireman,  it 
might  demolish  the  plant,  bring  ruin  as  well  as  death  to 
the  employer,  fatal  and  serious  injuries  to  many  em- 
ployes, but  the  cause  of  the  catastrophe,  if  disabled  for 
life  or  killed,  would  find  himself  or  his  dependents  a 
preferred  creditor  against  the  employer's  estate,  and 
his  claim  would  be  on  the  same  footing  with  that  of  his 
fellow  workmen  to  whom  he  had  brought  death  or  in- 
jury." ^ 

Determined  from  nature  of  conduct  not  consequences. 
Whether  or  not  misconduct  is  serious  is  to  be  deter- 
mined from  its  nature,  and  not  from  its  consequences. 
Johnson  v.  Marshall  Sons  &  Co.,  22  T.  L.  R.  565. 

Misconduct  is  not  serious  merely  because  the  actual 
consequences  in  the  particular  case  are  serious;  the 
misconduct  must  be  serious  in  itself.  Any  neglect  is 
serious  within  the  meaning  of  the  British  Compensation 
Act,  which  in  the  view  of  reasonable  persons  in  a  posi- 
tion to  judge,  expose  anybody,  including  the  person 
guilty  of  it,  to  the  risk  of  serious  injury.  Or  if  the  injury 
to  be  feared  is  of  such  a  character  that  it  may  be  de- 
scribed as  serious,  then  the  case  is  within  the  language 
of  the  Act.  Hill  v.  Granhy  Consolidated  Mines  (1906), 
12  B.  C.  118;  1  B.  W.  C.  C.  436. 

In  the  expression  ''serious  and  willful  misconduct," 
the  word  "serious"  applies  to  the  misconduct  itself  and 
not  to  the  actual  consequence  of  it;  and  the  word 
"willful"  imports  that  the  conduct  was  deliberate  and 
not  merely  a  thoughtless  act  on  the  spur  of  the  moment. 
*  Accident  Prevention  and  Relief,  Schwedtman  and  Emery,  p.  204. 


126    Bradbury's  workmen's  compensation  law 

Serious  and  willful  misconduct 

Johnson  v.  Marshall,  Sons  &  Co.  (1906),  94  L.  T.  828; 
8  W.  C.  C.  10. 

Question  of  fact  not  law.  A  finding  of  serious  and 
willful  misconduct  is  a  finding  of  fact  not  of  law. 
Donnachie  v.  United  Collieries  (1910),  47  Scotch  L.  R. 
412. 

Proof  of  negligence  not  sufficient.  Proof  of  negligence 
merely  is  not  sufficient  to  maintain  a  charge  of  serious 
and  willful  misconduct.  Rees  v.  Powell  Duffryn  Steam 
CoaZCo.  (1900),  4  W.C.C.  17. 

A  boy  working  at  a  machine  used  for  cutting  screws 
leaned  over  a  circular  saw  which  was  in  motion,  to 
pick  up  an  uncut  screw  which  had  fallen  from  its  place 
and  in  doing  so  injured  his  finger.  He  had  been  told 
frequently  not  to  put  his  hand  across  the  saw.  It  was 
held  that  there  was  evidence  of  negligence,  but  not  of 
serious  or  willful  misconduct  which  would  preclude  the 
boy  from  recovering  compensation.  Reeks  v.  Kynoch 
(1901),  4  W.  C.  C.  14. 

Right  to  dismiss  as  test  of  serious  and  willful  miscon- 
duct. Whether  an  employer  would  be  justified  in  dis- 
missing a  workman  without  notice  is  a  test  of  whether 
or  not  misconduct  is  serious  and  willful.  Johnson  v. 
Marshall,  Sons  &  Co.  (1906),  94  L.  T.  828;  8  W.  C.  C. 
10. 

Obvious  dangers.  Where  a  miner  was  injured  in 
crossing  the  shaft  bottom,  which  was  regarded  as  no- 
toriously dangerous,  although  there  was  no  special  rule 
prohibiting  miners  from  crossing  it,  it  was  held  that  he 
had  been  guilty  of  willful  and  serious  misconduct  and 
was  not  entitled  to  compensation.  Leishman  v.  William 
Dixon  (1910),  47  Scotch  L.  R.  410;  3  B.  W.  C.  C.  560. 

A  boy  removed  a  safety  roller  attached  to  a  wringing 


TO   WHOM   ACT  APPLIES  127 

Serious  and  willful  misconduct 

machine  and  was  injured  in  consequence.  He  had  been 
in  the  habit  of  removing  the  roller  and  working  without 
it  although  cautioned  not  to  do  so.  There  was  some 
rather  weak  evidence  that  the  uses  of  the  roller  had 
been  explained  to  him.  It  was  held  that  the  injury- 
was  not  attributable  to  serious  and  willful  misconduct. 
Darbon  v.  Gigg  (1904),  7  W.  C.  C.  32. 

A  miner  while  on  his  way  out  of  the  mine  was  ad- 
vised to  enter  a  manhole  to  allow  a  ''journey"  of  cars 
to  pass  him.  He  disregarded  the  advice  and  was  over- 
taken and  killed  by  the  cars.  It  was  held  that  he  was 
guilty  of  serious  and  willful  misconduct.  John  v. 
Albion  Coal  Co.  (1901),  4  W.  C.  C.  15.  The  above  en- 
titled case  was  decided  before  the  enactment  of  the 
Compensation  Law  of  1906.  In  the  previous  Compen- 
sation Law  serious  and  willful  misconduct  was  sufficient 
to  preclude  a  workman  or  his  dependents  from  recover- 
ing compensation.  In  the  amendment  of  1906,  how- 
ever, it  was  provided  that  should  serious  and  willful 
misconduct  result  in  serious  and  permanent  disablement 
or  death,  compensation  should  be  awarded  notwith- 
standing the  misconduct. 

The  proper  and  safe  way  to  proceed  from  a  lower  to  a 
higher  level  of  a  mine  was  by  a  ladder,  although  the 
miners  habitually  used  a  sump  shaft  provided  for  raising 
metals.  At  the  time  of  the  accident  a  miner  was  leaving 
by  way  of  the  sump  shaft.  It  was  held  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment,  and 
was  not  due  to  serious  and  willful  misconduct.  Douglas 
V.  United  Mineral  Mining  Co.  (1900),  2  W.  C.  C.  15. 

Drunkenness.  Drunkenness  when  it  occasions  the 
injury  may  amount  to  serious  and  willful  misconduct. 
Bradley  v.  Salt  Union  (1906),  122  L.  T.  J.  302;  9  W.  C.  C. 


128     Bradbury's  workmen's  compensation  law 

Serious  and  willful  misconduct 

31.  Mounting  a  ladder  while  drunk,  with  a  long  piece 
of  timber  on  one  shoulder,  and  out  of  bravado,  was  held 
to  be  serious  and  willful  misconduct.  Burrell  v.  Avis 
(1898),  1  W.  C.  C.  129. 

Misrepresentation  by  infant  as  to  age.  An  infant 
made  a  false  representation  to  the  effect  that  he  was  of 
full  age  in  order  to  secure  employment.  It  did  not 
appear  that  the  accident  in  question  was  attributable 
solely  to  such  misrepresentation.  Subsequently  having 
been  injured  in  the  course  of  his  employment  so  ob- 
tained, he  signed  a  release,  but  later  tendered  repay- 
ment of  the  money  paid  to  him  on  signing  the  release, 
and  started  proceedings  under  the  Act.  It  was  held 
that  the  infant  was  not  guilty  of  serious  and  willful 
misconduct,  and  that  the  release  was  not  a  bar  to  the 
recovery  of  compensation.  Darnley  v.  Canadian  Pacific 
Ry.  Co.,  14  B.  C.  R.  15;  2  B.  W.  C.  C.  505. 

Disobedience  of  orders  and  rules.  It  is  not  every 
breach  of  a  rule  that  will  constitute  serious  and  willful 
misconduct.  The  question  is  one  purely  of  fact  to  be 
determined  by  the  arbitrator  in  each  case.  (House  of 
Lords)  George  v.  Glasgow  Coal  Company  (1908),  99  L.  T. 
782;  2  B.  W.  C.  C.  125. 

A  bare  breach  of  a  regulation  from  which  no  injury 
could  reasonably  be  anticipated  is  not  serious  miscon- 
duct. Johnson  v.  Marshall,  Sons  &  Co.  (1906),  94  L. 
T.  828;  8  W.  C.  C.  10. 

If  a  workman  unnecessarily  breaks  an  express  and 
emphasized  order  made  solely  for  his  own  protection, 
and  which  he  fully  understands  and  appreciates,  he  is 
guilty  of  serious  and  willful  misconduct.  Jones  v.  Lon- 
don &  South  Western  Ry.  Co.  (1901),  3  W.  C.  C.  46. 
Deliberate  and  intentional  disobedience  on  the  part  of 


TO   WHOM   ACT   APPLIES  129 

Serious  and  willful  misconduct 

a  workman  to  an  oft-repeated  order  whereby  he  and 
his  fellow  workmen  are  placed  in  danger,  is  serious  and 
willful  misconduct.  It  is  no  answer  to  this  defense  that 
the  workman  believed  the  course  he  was  adopting 
when  disobeying  his  instructions  was  not  a  dangerous 
one.  Brooker  v.  Warren  (1907),  23  T.  L.  R.  201;  9  W. 
C.  C.  26.  In  the  last-mentioned  case  a  fatal  accident 
was  caused  by  the  act  of  the  deceased  in  removing  a 
guard  from  a  circular  saw.  Compensation  was  re- 
fused. 

A  workman  was  cautioned  by  a  foreman  not  to  use  a 
freight  elevator  until  he  was  acquainted  with  it.  He, 
nevertheless,  attempted  to  use  it  and  later  in  the  day 
was  found  dead,  jammed  between  the  side  of  the 
elevator  and  the  floor.  There  was  no  evidence  that  he 
had  not  been  instructed  in  the  use  of  the  elevator  and 
that  he  had  not  had  an  opportunity  of  becoming  ac- 
quainted with  it.  It  was  held  that  the  employers  had 
not  discharged  the  onus  resting  upon  them  to  show 
that  the  deceased  had  been  guilty  of  serious  and  willful 
misconduct,  and  therefore  compensation  was  awarded. 
Granick  v.  British  Columbia  Sugar  Refinery  Co.  (1910), 
15  B.  C.  R.  193;  4  B.  W.  C.  C.  452,  rev'g  (1909)  14  B. 
C.  R.  251;2B.  W.  C.  C.  511. 

A  collier  ordered  to  cut  a  road  in  the  colliery  left  his 
work  and  went  to  cut  coal  in  a  part  of  the  mine  where 
it  was  forbidden  by  special  rule  to  cut  any,  and  he 
thereby  undermined  some  props,  and  caused  a  fall, 
which  killed  him.  It  was  held  that  the  accident  did  not 
arise  out  of  nor  in  the  course  of  the  employment.  The 
court  said:  "If  a  workman  is  doing  something  outside 
the  scope  of  his  employment,  the  proof  of  serious  and 
willful  misconduct  does  not  bring  the  accident  within 
9 


130     Bradbury's  workmen's  compensation  law 

Serious  and  willful  misconduct 

the  scope  of  the  employment."  Weighill  v.  South 
Heaton  Coal  Co.  (1911),  4  B.  W.  C.  C.  141. 

A  servant  girl  was  forbidden  to  stand  on  the  ledge  of 
a  glass  frame  to  hang  out  clothes  in  the  garden.  She 
did  stand  on  it  and  slipped,  breaking  one  of  her  ribs. 
It  was  held  that  the  applicant  was  guilty  of  serious  and 
willful  misconduct,  and  she  was  not  entitled  to  com- 
pensation.   Beale  v.  Fox  (1909),  2  B.  W.  C.  C.  467. 

The  owners  of  a  factory  posted  a  notice  near  an 
elevator  reading  as  follows:  ''No  one  is  allowed  to  use 
this  hoist  except  in  charge  of  a  load."  A  workman  just 
before  mealtime  got  in  the  lift  alone  and  a  few  moments 
later  was  found  injured  so  he  died  shortly  afterwards 
from  being  caught  between  the  floor  of  the  elevator 
and  the  top  of  the  door.  It  was  shown  that  the  em- 
ployes frequently  violated  the  rule  contained  in  the 
notice,  but  it  appeared  that  this  was  unknown  to  the 
employers.  The  employers  offered  no  evidence  as  to 
any  danger  in  using  the  Uft  in  violation  of  the  notice, 
but  rested  merely  on  the  disobedience  to  defeat  the 
dependent's  claim  for  compensation,  on  the  ground  of 
serious  and  willful  misconduct.  The  House  of  Lords 
held  that  the  employers  had  not  sustained  the  burden 
of  showing  such  serious  and  willful  misconduct  as 
would  defeat  the  right  to  compensation.  Johnson  v. 
Marshall,  Sons  &  Co.  (1906),  94  L.  T.  828;  8  W.  C.  C. 
10. 

The  special  rules  of  a  mine  imposed  upon  the  miner 
working  at  the  coal  seam  bottom  of  the  mid-working 
the  duty  of  keeping  the  gate  which  fenced  the  working 
from  the  shaft  closed  until  the  cage  had  been  brought  to 
the  level  of  the  working  and  brought  to  a  standstill,  so 
that  it  might  be  safely  entered  from  the  working.    The 


TO   WHOM   ACT   APPLIES  131 

Serious  and  willful  misconduct 

miner  opened  the  gate  before  he  had  ascertained  that 
the  cage  had  been  brought  to  the  level  of  the  working 
and  to  a  standstill.  He  then,  assuming  the  cage  was 
there,  pushed  a  hutch  forward,  which  fell  down  the 
shaft  and  the  miner  fell  also  and  was  injured.  It  was 
found  that  the  injury  would  not  lead  to  serious  and 
permanent  disablement,  and  that  the  miner  was  guilty 
of  serious  and  willful  misconduct,  and  therefore  he  was 
not  entitled  to  compensation.  George  v.  Glasgow  Coal 
Co.  (1908),  45  Scotch  L.  R.  687;  1  B.  W.  C.  C.  239.  A 
special  rule  applicable  to  a  mine  pit  provided  that  "a 
workman  shall  not  permit  a  naked  light  to  remain  *  *  * 
in  such  a  position  that  it  could  ignite  the  explosive." 
A  miner  was  injured  by  the  explosion  of  gunpowder. 
The  arbitrator  held  that  the  miner  "having  permitted 
his  naked  hght  to  remain  in  such  a  position  that  it 
ignited  the  gunpowder,  and  having  failed  to  establish 
any  circumstances  justifying  his  doing  so  committed 
a  breach  of  said  special  rule,  and  that  therefore  his 
injuries  were  attributable  to  his  serious  and  wdllful  mis- 
conduct," and  compensation  was  denied.  The  Court 
of  Sessions  of  Scotland,  on  appeal,  held  that  this  was 
a  finding  on  a  question  of  fact  and  affirmed  the  ruling. 
Donnachie  v.  United  Collieries  (1910),  47  Scotch  L.  R. 
412. 

A  boy,  in  disobedience  of  orders,  was  cleaning  a 
machine  in  motion,  and  his  right  hand  was  drawn  into 
the  machine  and  the  top  joint  of  the  first  and  third 
fingers  torn  off.  The  County  Court  judge  held  that  the 
injury  was  attributable  to  the  serious  and  willful  mis- 
conduct of  the  workman,  but  that  it  resulted  in  serious 
and  permanent  disablement,  and  he  therefore  awarded 
compensation.    It  was  held  on  appeal  that  the  injury 


13^     Bradbury's  workmen's  compensation  law 

California 

resulted  in  permanent  disablement  and  that  there  was 
evidence  on  which  the  County  Court  judge  could  find 
that  the  disablement  was  serious.  Hopwood  v.  Olive 
&  Partington  (1910),  3  B.  W.  C.  C.  357. 

It  is  serious  and  willful  misconduct  for  a  workman  to 
deliberately  meddle  with  new  and  unfamiliar  machinery 
contrary  to  an  express  order  given  immediately  before. 
Forster  v.  Pierson  (1906),  8  W.  C.  C.  19. 

Disobedience  to  an  order  of  a  deputy  amounting  to 
a  breach  of  a  general  rule  of  a  mine  is  serious  and  willful 
misconduct.  Watson  v.  Butterley  Co.  (1902),  5  W.  C.  C. 
51. 

CALIFORNU 
(L.  1911,  c.  399) 

"  §  3.  Liability  for  the  compensation  hereinafter 
provided  for,  in  lieu  of  any  other  liability  whatsoever, 
shall,  without  regard  to  negligence,  exist  against  an 
employer  for  any  personal  injury  accidentally  sus- 
tained by  his  employes,  and  for  his  death  if  the  injury 
shall  approximately  cause  death,  in  those  cases  where 
the  following  conditions  of  compensation  concur : 

"(1).  Where,  at  the  time  of  the  accident,  both  the 
employer  and  employ 6  are  subject  to  the  provisions 
of  this  act  according  to  the  succeeding  sections  hereof. 

"(2).  Where,  at  the  time  of  the  accident,  the  em- 
ploy6  is  performing  service  growing  out  of  and  in- 
cidental to  his  employment  and  is  acting  within  the 
line  of  his  duty  or  course  of  his  employment  as  such. 

"(3).  Where  the  injury  is  approximately  caused  by 
accident,  either  with  or  without  negligence,  and  is  not 
so  caused  by  the  willful  misconduct  of  the  employ^. 

"And  where  such  conditions  of  compensation  exist 
for  any  personal  injury  or  death,  the  right  to  the  re- 
covery of  such  compensation  pursuant  to  the  provi- 


TO   WHOM   ACT   APPLIES  133 

California 

sions  of  this  act,  and  acts  amendatory  thereof,  shall 
be  the  exclusive  remedy  against  the  employer  for  such 
injury  or  death,  except  that  when  the  injury  was 
caused  by  the  personal  gross  negligence  or  willful 
personal  misconduct  of  the  employer,  or  by  reason  of 
his  violation  of  any  statute  designed  for  the  protection 
of  employes  from  bodily  injury,  the  employe  may,  at 
his  option,  either  claim  compensation  under  this  act, 
or  maintain  an  action  for  damages  therefor;  in  all  other 
cases  the  liability  of  the  employer  shall  be  the  same 
as  if  this  and  the  succeeding  sections  of  this  act  had 
not  been  passed,  but  shall  be  subject  to  the  provisions 
of  the  preceding  sections  of  this  act." 

The  provisions  of  §  3  (2)  above  are  very  broad.  They 
cover  every  possible  employment.  The  only  exception 
to  be  found  in  the  statute  is  that  contained  in  §  6  (2)  ^ 
which  provides  that  the  term  ''employe"  shall  not 
include  ''any  person  whose  employment  is  but  casual 
and  not  in  the  usual  course  of  the  trade,  business, 
profession,  or  occupation  of  his  employer." 

The  other  words  of  exclusion  are  also  very  broad. 
They  limit  the  application  of  the  act  to  employes 
who  are  engaged  in  the  "usual  course  of  the  trade, 
business,  profession,  or  occupation^'  of  the  employer. 
§  6  (2)  page  135.  These  words  would  seem  to  exclude 
all  domestic  servants. 

"§  4.  The  following  shall  constitute  employers  sub- 
ject to  the  provisions  of  this  act  within  the  meaning 
of  the  preceding  section : 

"  (1).  The  State,  and  each  county,  city  and  county, 
city,  town,  village  and  school  districts  and  all  public 
corporations,  every  person,  firm,  and  private  corpora- 
1  See  post,  page  135. 


134     Bradbury's  workmen's  compensation  law 

California 

tion  (including  any  public  service  corporation),  who 
has  any  person  in  service  under  any  contract  of  hire, 
express  or  implied,  oral  or  written,  and  who,  at  or 
prior  to  the  time  of  the  accident  to  the  employe  for 
which  compensation  under  this  act  may  be  claimed, 
shall,  in  the  manner  provided  in  the  next  section,  have 
elected  to  become  subject  to  the  provisions  of  this  act, 
and  who  shall  not,  at  the  time  of  such  accident,  have 
withdrawn  such  election,  in  the  manner  provided  in  the 
next  section. 

"  §  5.  Such  election  on  the  part  of  the  employer  shall 
be  made  by  filing  with  the  industrial  accident  board, 
hereinafter  provided  for,  a  written  statement  to  the 
effect  that  he  accepts  the  provisions  of  this  act,  the 
filing  of  which  statement  shall  operate,  within  the 
meaning  of  section  three  of  this  act,  to  subject  such 
employer  to  the  provisions  of  this  act  and  all  acts 
amendatory  thereof  for  the  term  of  one  year  from  the 
date  of  the  filing  of  such  statement,  and  thereafter, 
without  further  act  on  his  part,  for  successive  terms  of 
one  year  each,  unless  such  employer  shall,  at  least 
sixty  days  prior  to  the  expiration  of  such  first  or  any 
succeeding  year,  file  in  the  office  of  said  board  a  notice 
in  writing  to  the  effect  that  he  withdraws  his  election 
to  be  subject  to  the  provisions  of  the  act. 

"§  6.  The  term  "employe"  as  used  in  section  three 
of  this  act  shall  be  construed  to  mean : 

"(1).  Every  person  in  the  service  of  the  State,  or 
any  county,  city  and  county,  city,  town,  village  or 
school  district  therein,  and  all  public  corporations, 
under  any  appointment  or  contract  of  hire,  express  or 
'  implied,  oral  or  written,  except  any  official  of  the 
State,  or  of  any  county,  city  and  county,  city,  town, 
village  or  school  district  therein  or  any  public  corpora- 
tion, who  shall  have  been  elected  or  appointed  for  a 


TO   WHOM   ACT   APPLIES  135 

California 

regular  term  of  one  or  more  years,  or  to  complete  the 
unexpired  portion  of  any  such  regular  term. 

"(2).  Every  person  in  the  service  of  another  under 
any  contract  of  hire,  express  or  implied,  oral  or  writ- 
ten, including  aliens,  and  also  including  minors  who 
are  legally  permitted  to  work  under  the  laws  of  the 
State  (who,  for  the  purposes  of  the  next  section  of 
this  act,  shall  be  considered  the  same  and  shall  have 
the  same  power  of  contracting  as  adult  employes), 
but  not  including  any  person  whose  employment  is  but 
casual  and  not  in  the  usual  course  of  the  trade,  busi- 
ness, profession  or  occupation  of  his  employer. 

"§  7.  Any  employe  as  defined  in  subsection  (1)  of 
the  preceding  section  shall  be  subject  to  the  provisions 
of  this  act  and  of  any  act  amendatory  thereof.  Any 
employ^  as  defined  in  subsection  (2)  of  the  preceding 
section  shall  be  deemed  to  have  accepted  and  shall, 
within  the  meaning  of  section  3  of  this  act,  be  subject 
to  the  provisions  of  this  act  and  of  any  act  amendatory 
thereof,  if,  at  the  time  of  the  accident  upon  which  lia- 
bility is  claimed: 

"(1).  The  employer  charged  with  such  liability  is 
subject  to  the  provisions  of  this  act,  whether  the  em- 
ploye has  actual  notice  thereof  or  not;  and 

"(2).  At  the  time  of  entering  into  his  contract  of 
hire,  express  or  implied,  with  such  employer,  such  em- 
ploye shall  not  have  given  to  his  employer  notice  in 
writing  that  he  elects  not  to  be  subject  to  the  provi- 
sions of  this  act,  or,  in  the  event  that  such  contract  of 
hire  was  made  in  advance  of  such  employer  becoming 
subject  to  the  provisions  of  the  act,  such  employe  shall, 
without  giving  such  notice,  remain  in  the  service  of 
such  employer  for  thirty  days  after  the  employer  has 
filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act." 


136     Bradbury's  workmen's  compensation  law 

IlliDois 

"§27,  The  board  shall  cause  to  be  printed  and 
furnished  free  of  charge  to  any  employer  or  employ^ 
such  blank  forms  as  it  shall  deem  requisite  to  facilitate 
or  promote  the  efficient  administration  of  this  act;  it 
shall  provide  a  proper  record  book  in  which  shall  be 
entered  and  indexed  the  name  of  every  employer  who 
shall  file  a  statement  of  election  under  this  act,  and  the 
date  of  the  filing  thereof,  and  a  separate  book  in  which 
shall  be  entered  and  indexed  the  name  of  every  em- 
ployer who  shall  file  his  withdrawal  of  such  election, 
and  the  date  of  the  filing  thereof;  and  a  book  in  which 
shall  be  recorded  all  awards  made  by  the  board;  and 
such  other  books  or  records  as  it  shall  deem  required 
by  the  proper  and  efficient  administration  of  this  act; 
all  such  records  to  be  kept  in  the  office  of  the  board. 
Upon  the  filing  of  a  statement  of  election  by  an  em- 
ployer to  become  subject  to  the  provisions  of  this  act, 
the  board  shall  forthwith  cause  notice  of  the  fact  to 
be  given  to  his  employes,  by  posting  and  keeping  con- 
tinuously posted  in  a  public  and  conspicuous  place 
such  notice  thereof  in  the  office,  shop,  or  place  of 
business  of  the  employer,  or  by  publishing,  or  in  such 
other  manner  as  the  board  shall  deem  most  effective, 
and  the  board  shall  cause  notice  to  be  given  in  like 
manner  of  the  filing  of  any  withdrawal  of  such  elec- 
tion; but  notwithstanding  the  failure  to  give,  or  the 
insufficiency  of,  any  such  notice,  knowledge  of  all  filed 
statements  of  election  and  withdrawals  of  election, 
and  of  the  time  of  the  filing  of  the  same,  shall  con- 
clusively be  imputed  to  all  employes." 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  1 .  Beit  enacted  by  the  people  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  That  any  em- 


TO   WHOM   ACT   APPLIES  137 

Illinois 

ployer  covered  by  the  provisions  of  this  Act  in  this 
State  may  elect  to  provide  and  pay  compensation  for 
injuries  sustained  by  any  employ 6  arising  out  of  and 
in  the  course  of  the  employment  according  to  the 
provisions  of  this  Act,  and  thereby  relieve  himself 
from  liability  for  the  recovery  of  damages,  except  as 
herein  provided. 

"  (3)  a.  Every  such  employer  is  presumed  to  have 
elected  to  provide  and  pay  the  compensation  accord- 
ing to  the  provisions  of  this  Act,  unless  and  until 
notice  in  writing  of  his  election  to  the  contrary  is  filed 
with  the  State  Bureau  of  Labor  Statistics. 

"&.  Every  employer  within  the  provisions  of  this 
Act  faihng  to  file  such  notice  shall  be  bound  hereby  as 
to  all  his  employes  who  shall  elect  to  come  within  the 
provisions  of  this  Act  until  January  1st  of  the  next 
succeeding  year  and  for  terms  of  each  year  thereafter : 
Provided,  any  such  employer  may  elect  to  discon- 
tinue the  payments  of  compensation  herein  provided, 
only  at  the  expiration  of  any  such  calendar  year,  by 
filing  notice  of  his  intention  to  discontinue  such  pay- 
ments, with  the  State  Bureau  of  Labor  Statistics,  at 
least  sixty  days  prior  to  the  expiration  of  any  such 
calendar  year,  and  by  posting  such  notice  in  the  plant, 
shop,  office  or  place  of  work,  or  by  personal  service,  in 
written  or  printed  form,  upon  such  employ^,  at  least 
sixty  days  prior  to  the  expiration  of  any  such  calendar 
year. 

"c.  In  the  event  any  employer  elects  to  provide  and 
pay  compensation  provided  in  this  Act,  then  every 
employ^  of  such  employer,  as  a  part  of  his  contract  of 
hiring  or  who  may  be  employed  at  the  time  of  the 
taking  effect  of  this  Act  and  the  acceptance  of  its  provi- 
^  See  Chapter  I,  ante,  page  10. 


138     Bradbury's  workmen's  compensation  law 

Illinois 

sions  by  the  employer,  shall  be  deemed  to  have  ac- 
cepted all  the  provisions  of  this  Act  and  shall  be 
bound  thereby  unless  within  thirty  days  after  such 
hiring  and  after  the  taking  effect  of  this  Act,  he  shall 
file  a  notice  to  the  contrary  with  the  Secretary  of  the 
State  Bureau  of  Labor  Statistics,  whose  duty  it  shall 
be  to  immediately  notify  the  employer,  and  if  so  noti- 
fied, the  employer  shall  not  be  deprived  of  any  of  his 
common-law  or  statutory  defenses,  and  until  such  no- 
tice to  the  contrary  is  given  to  the  employer,  the  meas- 
ure of  liability  of  the  employer  for  any  injury  shall 
be  determined  according  to  the  compensation  provi- 
sions of  this  Act:  Provided,  However,  that  before 
any  such  employe  shall  be  bound  by  the  provi- 
sions of  this  Act,  his  employer  shall  either  furnish  to 
such  employe  personally  at  the  time  of  his  hiring,  or 
post  in  a  conspicuous  place  at  the  plant  or  in  the 
room  or  place  where  such  employ^  is  to  be  employed, 
a  legible  statement  of  the  compensation  provisions  of 
this  Act. 

"§2.  The  provisions  of  this  Act  shall  apply  to 
every  employer  in  the  State  engaged  in  the  building, 
maintaining  or  demolishing  of  any  structure;  in  any 
construction  or  electrical  work;  in  the  business  of 
carriage  by  land  or  water  and  loading  and  unloading 
in  connection  therewith  (except  as  to  carriers  who 
shall  be  construed  to  be  excluded  herefrom  by  the 
laws  of  the  United  States  relating  to  liability  to  their 
employes  for  personal  injuries  while  engaged  in  inter- 
state commerce  where  such  laws  are  held  to  be  exclu- 
sive of  all  state  regulations  providing  compensation 
for  accidental  injuries  or  death  suffered  in  the  course 
of  employment);  in  operating  general  or  terminal 
storehouses;  in  mining,  surface  mining,  or  quarrying; 
in  any  enterprise,  or  branch  thereof,  in  which  explosive 


TO   WHOM   ACT   APPLIES  139 

Illinois 

materials  are  manufactured,  handled  or  used  in  dan- 
gerous quantities;  in  any  enterprise  wherein  molten 
metal  or  injurious  gases  or  vapors  or  inflammable 
fluids  are  manufactured,  used,  generated,  stored  or 
conveyed  in  dangerous  quantities;  and  in  any  enter- 
prise in  which  statutory  regulations  are  now  or  shall 
hereafter  be  imposed  for  the  guarding,  using  or  the 
placing  of  machinery  or  appliances,  or  for  the  protec- 
tion and  safeguarding  of  the  employes  therein,  each 
of  which  employments  is  hereby  determined  to  be 
especially  dangerous,  in  which  from  the  nature,  con- 
ditions and  means  of  prosecution  of  the  work  therein, 
extraordinary  risks  to  life  and  limb  of  the  employe  en- 
gaged therein  are  inherent,  necessary  or  substantially 
unavoidable,  and  as  to  each  of  which  employments  it  is 
deemed  necessary  to  establish  a  new  system  of  com- 
pensation for  accidents  to  the  employes  therein. 

"§  3.  No  common  law  or  statutory  right  to  recover 
damages  for  injury  or  death  sustained  by  any  employ^ 
while  engaged  in  the  line  of  his  duty  as  such  employ^ 
other  than  the  compensation  herein  provided  shall  be 
available  to  any  employ^  who  has  accepted  the  pro- 
visions of  this  Act  or  to  any  one  wholly  or  partially 
dependent  upon  him  or  legally  responsible  for  his 
estate:  Provided,  that  when  the  injury  to  the  em- 
ploy6  was  caused  by  the  intentional  omission  of  the 
employer,  to  comply  with  statutory  safety  regulations, 
nothing  in  this  Act  shall  affect  the  civil  liability  of  the 
employer.  If  the  employer  is  a  partnership,  such 
omission  must  be  that  of  one  of  the  partners  thereof, 
and  if  a  corporation,  that  of  any  elective  officer  thereof. 

"§7.  The  compensation  herein  provided  shall  be 
the  measure  of  the  responsibility  which  the  employer 
has  assumed  for  injuries  or  death  that  may  occur  to 
employes  in  his  employment  subject  to  the  provisions 


140     Bradbury's  workmen's  compensation  law 

Illinois 

of  this  Act,  and  it  shall  not  be  in  any  way  reduced  by 
contributions  from  employes. 

*'§  8.  If  it  is  proved  that  the  injury  to  the  employ^ 
resulted  from  his  deliberate  intention  to  cause  such 
injury,  no  compensation  with  respect  to  that  injury 
shall  be  allowed. 

Employers  are  not  permitted  to  collect  from  employes 
any  portion  of  the  premium  paid  for  insurance  against 
liability  under  this  Act.  §  15.  See  Chapter  XXXIV, 
post. 

"§21.  The  term  "employ^"  as  used  in  this  Act 
shall  be  held  to  include  only  such  persons  as  may  be 
exposed  to  the  necessary  hazards  of  carrying  on  any 
employment  or  enterprise  referred  to  in  Section  2 
of  this  Act.  Persons  whose  employment  is  of  a  casual 
nature  and  who  are  employed  otherwise  than  for  the 
purpose  of  the  employer's  trade  or  business,  are  not 
included  in  the  foregoing  definition. 

"  §  22.  Section  21  shall  not  be  construed  to  in- 
clude any  employe  engaged  in  any  work  of  an  in- 
cidental character  unconnected  with  the  dangers 
necessarily  involved  in  carrying  on  any  employment 
or  enterprise  referred  to  in  Section  2,  or  in  any  work 
of  a  clerical  or  administrative  nature  which  does  not 
expose  the  employ^  to  the  inherent  hazards  of  any 
such  employment  or  enterprise." 

The  provisions  of  §§21  and  22  show  the  effort  which 
has  been  made  to  exclude  domestic  servants  and  to  in- 
clude only  the  persons  who  are  engaged  in  the  em- 
ployer's business.  The  meaning  of  the  terms  ''casual" 
employes,  and  ''employes  engaged  in  any  work  of  an  in- 
cidental character  unconnected  with  the  dangers  neces- 


TO   WHOM   ACT   APPLIES  141 

Kansas 

sarily  involved  in  carrying  on  any  employment  or 
enterprise"  will  undoubtedly  be  the  subject  of  much 
discussion.  For  definitions  and  court  decisions  as  to 
the  term  ''casual"  employes  see  pages  121  et  seq. 

KANSAS 
(L.  1911,  c.  218) 

"§  1.  The  obligation.  If  in  any  employment  to 
which  this  act  applies,  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  employment  is 
caused  to  a  workman,  his  employer  shall,  subject  as 
hereinafter  mentioned,  be  liable  to  pay  compensation 
to  the  workman  in  accordance  with  this  act.  Save  as 
herein  provided,^  no  such  employer  shall  be  liable  for 
any  injury  for  which  compensation  is  recoverable 
under  this  act;  provided,  that  (a)  the  employer  shall 
not  be  liable  under  this  act  in  respect  of  any  injury 
which  does  not  disable  the  workman  for  a  period  of 
at  least  two  weeks  from  earning  full  wages  at  the  work 
at  which  he  is  employed;  (6)  if  it  is  proved  that  the 
injury  to  the  workman  results  from  his  deliberate 
intention  to  cause  such  injury,  or  from  his  willful 
failure  to  use  a  guard  or  protection  against  accident 
required  pursuant  to  any  statute  and  provided  for 
him,  or  a  reasonable  and  proper  guard  and  protection 
voluntarily  furnished  him  by  said  employer,  or  solely 
from  his  deliberate  breach  of  statutory  regulations 
affecting  safety  of  life  or  limb,  or  from  his  intoxica- 
tion, any  compensation  in  respect  to  that  injury  shall 
be  disallowed. 

"§  2,  Reservation  of  liability  for  wrong  or  negligence 

^  See  §  2,  post,  wherein  it  is  provided  that  an  injured  workman  or 
his  dependents  may  elect  whether  to  demand  "compensation"  or 
"damages"  in  certain  cases. 


142     Bradbury's  workmen's  compensation  law 

Kansas 

in  certain  cases.  Where  the  injury  was  proximately 
caused  by  the  individual  negligence,  either  of  com- 
mission or  omission,  of  the  employer,  including  such 
negligence  of  the  directors  or  of  any  managing  officer  or 
managing  agent  of  such  employer  if  a  corporation,  or 
of  any  of  the  partners  if  such  employer  is  a  partnership, 
or  of  any  member  if  such  employer  is  an  association, 
but  excluding  the  negligence  of  competent  employes 
in  the  performance  of  their  duties  or  of  the  employer's 
duty  delegated  to  them,  the  existing  liability  of  the 
employer  shall  not  be  affected  by  this  act,  but  in  such 
case  the  injured  workman,  or  if  death  results  from 
such  injury,  his  dependents  as  herein  defined,  if  they 
unanimously  agree,  otherwise  his  legal  representative, 
may  elect  between  any  right  of  action  against  the 
employer  upon  such  liability  and  the  right  to  compen- 
sation under  this  act." 

"§  6.  Application  of  the  act.  This  act  shall  apply 
only  to  employment  in  the  course  of  the  employer's 
trade  or  business  on,  in,  or  about  a  railway,  factory, 
mine  or  quarry,  electric,  building  or  engineering  work, 
laundry,  natural  gas  plant  and  all  employments 
wherein  a  process  requiring  the  use  of  any  dangerous 
explosive  or  inflammable  materials  is  carried  on,  which 
is  conducted  for  the  purpose  of  business,  trade  or 
gain;  each  of  which  employments  is  hereby  deter- 
mined to  be  especially  dangerous,  in  which  from  the 
nature,  conditions  or  means  of  prosecution  of  the  work 
therein,  extraordinary  risk  to  the  life  and  limb  of  the 
workman  engaged  therein  are  inherent,  necessary,  or 
substantially  unavoidable,  and  as  to  each  of  which 
I  employments  it  is  deemed  necessary  to  establish  a 
new  system  of  compensation  for  injuries  to  workmen. 
This  act  shall  not  apply  in  any  case  where  the  accident 
occurred  before  this  act  takes  effect,  and  all  rights 


TO   WHOM   ACT  APPLIES  143 

Kansas 

which  have  accrued,  by  reason  of  any  such  accident, 
at  the  time  of  the  publication  of  this  act,  shall  be 
saved  the  remedies  now  existing  therefor,  and  the 
court  shall  have  the  same  power  as  to  them  as  if  this 
act  had  not  been  enacted. 

"  §  7.  This  act  shall  not  be  construed  to  apply  to 
business  or  employments  which,  according  to  law,  are 
so  engaged  in  interstate  commerce  as  to  be  not  sub- 
ject to  the  legislative  power  of  the  State,  nor  to  per- 
sons injured  while  they  are  so  engaged. 

"  §  8.  It  is  hereby  determined  that  the  necessity'' 
for  this  law  and  the  reason  for  its  enactment,  exist 
only  with  regard  to  employers  who  employ  a  consider- 
able number  of  persons.  This  act,  therefore,  shall  only 
apply  to  employers  by  whom  fifteen  or  more  workmen 
have  been  [employed]  continuously  for  more  than  one 
month  at  the  time  of  the  accident  and  who  have  elected 
or  shall  elect  before  the  accident  to  come  within  the 
provision  hereof;  provided,  however,  that  employers 
having  less  than  fifteen  workmen  may  elect  to  come 
within  the  provisions  of  this  act  in  which  case  his 
employes  shall  be  included  herein,  as  hereinafter  pro- 
vided." 

"§  10.  Incompetency  of  workman.  In  case  an  in- 
jured workman  is  mentally  incompetent  or  a  minor,  or 
where  death  results  from  the  injury,  in  case  any  of  his 
dependents  as  herein  defined  is  mentally  incompetent 
or  a  minor,  at  the  time  when  any  right,  privilege  or 
election  accrues  to  him  under  this  act,  his  guardian 
may,  in  his  behalf,  claim  and  exercise  such  right, 
privilege,  or  election,  and  no  limitation  of  time,  in  this 
act  provided  for,  shall  run,  so  long  as  such  incompetent 
or  minor  has  no  guardian." 

"§44.  All  employers  as  defined  by  this  act  who 
shall  elect  to  come  within  the  provisions  of  this  act 


144     Bradbury's  workmen's  compensation  law 

Kansas 

and  of  all  acts  amendatory  hereof  shall  do  so  by  filing 
a  statement  to  such  effect  with  the  Secretary  of  State 
of  this  State  at  any  time  after  taking  effect  of  this  act, 
which  election  shall  be  binding  upon  such  employer 
for  the  term  of  one  year  from  the  date  of  the  filing  of 
such  statement,  and  thereafter,  without  further  act  on 
his  part,  for  successive  terms  of  one  year  each,  unless 
such  employer  shall,  at  least  sixty  days  prior  to  the 
expiration  of  such  first  or  of  any  succeeding  year,  file 
in  the  office  of  the  Secretary  of  State  a  notice  in  writing 
to  the  effect  that  he  withdraws  his  election  to  be  sub- 
ject to  the  provisions  of  this  act.  Notice  of  such  elec- 
tion or  withdrawal  shall  be  forthwith  posted  by  such 
employer  in  conspicuous  places  in  and  about  his  place 
of  business. 

"§45.  Every  employ^  entitled  to  come  within  the 
provisions  of  this  act,  shall  be  presumed  to  have  done 
so  unless  he  serve  written  notice,  before  injury,  upon 
his  employer  that  he  elects  not  to  accept  thereunder 
and  thereafter  any  such  employ^  desiring  to  change 
his  election  shall  only  do  so  by  serving  written  notice 
thereof  upon  his  employer.  Any  contract  wherein  an 
employer  requires  of  an  employ^  as  a  condition  of  em- 
ployment that  he  shall  elect  not  to  come  within  the 
provisions  of  this  act  shall  be  void." 

"  §  47.  In  an  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  State  by  an  em- 
ploy6  (entitled  to  come  within  the  provisions  of  this 
act)  while  engaged  in  the  line  of  his  duty  as  such  or 
for  death  resulting  from  personal  injury  so  sustained 
in  which  recovery  is  sought  upon  the  ground  of  want  of 
due  care  of  the  employer  or  of  any  officer,  agent  or 
servant  of  the  employer,  and  where  such  employer  has 
elected  to  come  and  is  within  the  provisions  of  this  act 
as  hereinbefore  provided,  it  shall  be  a  defense  for  such    ' 


TO   WHOM   ACT  APPLIES  145 

Massachusetts 

employer  in  all  cases  where  said  employ^  has  elected 
not  to  come  within  the  provisions  of  this  act;  (a)  That 
the  employe  either  expressly  or  impliedly  assumed  the 
risk  of  the  hazard  complained  of;  (6)  that  the  injury 
or  death  was  caused  in  whole  or  in  part  by  the  want  of 
due  care  of  a  fellow  servant;  (c)  that  said  employe  was 
guilty  of  contributory  negligence;  provided,  however, 
that  none  of  these  defenses  shall  be  available  where 
the  injury  was  caused  by  the  willful  or  gross  negli- 
gence of  such  employer,  or  of  any  managing  officer,  or 
managing  agent  of  said  employer,  or  where  under  the 
law  existing  at  the  time  of  the  death  or  injury  such 
defenses  are  not  available." 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  I,  §  4.  The  provisions  of  sections  one  hundred 
and  twenty-seven,  to  one  hundred  and  thirty-five, 
inclusive,  and  of  one  hundred  and  forty-one  to  one 
hundred  and  forty-three,  inclusive,  of  chapter  five 
hundred  and  fourteen  of  the  acts  of  the  year  nineteen 
hundred  and  nine,  and  of  any  acts  in  amendment 
thereof,  shall  not  apply  to  employes  of  a  subscriber 
while  this  act  is  in  effect. 

"§  5.  An  employe  of  a  subscriber  shall  be  held  to 
have  waived  his  right  of  action  at  common  law  to 
recover  damages  for  personal  injuries  if  he  shall  not 
have  given  his  employer  at  the  time  of  his  contract  of 
hire,  notice  in  writing  that  he  claimed  such  right,  or  if 
the  contract  of  hire  was  made  before  the  employer 
became  a  subscriber,  if  the  employ^  shall  not  have 
given  the  said  notice  within  thirty  days  of  notice  of 
such  subscription.  An  employ^  who  has  given  notice 
to  his  employer  that  he  claimed  his  right  of  action  at 
common  law  may  waive  such  claim  by  a  notice  in 
10 


146     Bradbury's  workmen's  compensation  law 

Michigan 

writing  which  shall  take  effect  five  days  after  it  is 
delivered  to  the  employer  or  his  agent." 

"Part  II,  §  1.  If  an  employe,  who  has  not  given 
notice  of  his  claim  of  common-law  rights  of  action,  as 
provided  in  Part  I,  section  five,  or  who  has  given  such 
notice  and  has  waived  the  same,  receives  a  personal 
injury  arising  out  of  and  in  the  course  of  his  employ- 
ment, he  shall  be  paid  compensation  by  the  association, 
as  hereinafter  provided,  if  his  employer  is  a  subscriber 
at  the  time  of  the  injury." 

*'§2.  If  the  employ^  is  injured  by  reason  of  his 
serious  and  willful  misconduct,  he  shall  not  receive 
compensation. 

"§3.  If  the  employe  is  injured  by  reason  of  the 
serious  and  willful  misconduct  of  a  subscriber  or  of  any 
person  regularly  entrusted  with  and  exercising  the 
powers  of  superintendence,  the  amounts  of  compensa- 
tion hereinafter  provided  shall  be  doubled.  In  such 
case  the  subscriber  shall  repay  to  the  association  the 
extra  compensation  paid  to  the  employe.  If  a  claim 
is  made  under  this  section  the  subscriber  shall  be  al- 
lowed to  appear  and  defend  against  such  claim  only." 
(As  amended  by  L.  1912,  c.  571.) 

Casual  employes  are  not  included  within  the  oper- 
ation of  the  act.  Part  V,  §  2.  See  Chapter  XVII, 
post,  page  338. 

"  Part  V,  §  5.  The  provisions  of  this  act  shall  not 
apply  to  injuries  sustained  prior  to  the  taking  effect 
thereof." 

,  MICHIGAN 

(L.  1912,  c.  000) 

"  Part  I,  §  5.  The  following  shall  constitute  em- 
ployers subject  to  the  provisions  of  this  act: 


TO   WHOM   ACT   APPLIES  147 

Michigan 

"1.  The  State  and  each  county,  city,  township,  in- 
corporated village  and  school  district  therein; 

"2,  Every  person,  firm  and  private  corporation,  in- 
cluding any  public  service  corporation,  who  has  any 
person  in  service  under  any  contract  of  hire,  express  or 
implied,  oral  or  written,  and  who,  at  or  prior  to  the 
time  of  the  accident  to  the  employ^  for  which  com- 
pensation under  this  act  may  be  claimed,  shall  in  the 
manner  provided  in  the  next  section,  have  elected  to 
become  subject  to  the  provisions  of  this  act,  and  who 
shall  not,  prior  to  such  accident,  have  effected  a 
withdrawal  of  such  election,  in  the  manner  provided 
in  the  next  section." 


"Part  I,  §  6.  Such  election  on  the  part  of  the  em- 
ployers mentioned  in  subdivision  two  of  the  preceding 
section,  shall  be  made  by  filing  with  the  industrial 
accident  board  hereinafter  provided  for,  a  written 
statement  to  the  effect  that  such  employer  accepts  the 
provisions  of  this  act,  and  that  he  adopts,  subject  to 
the  approval  of  said  board,  one  of  the  four  methods 
provided  for  the  payment  of  the  compensation  here- 
inafter specified.  The  filing  of  such  statement  and  the 
approval  of  said  board  shall  operate,  within  the  mean- 
ing of  the  preceding  section,  to  subject  such  employer 
to  the  provisions  of  this  act  and  all  acts  amendatory 
thereof  for  the  term  of  one  year  from  the  date  of 
the  filing  of  such  statement,  and  thereafter,  without 
further  act  on  his  part,  for  successive  terms  of  one 
year  each,  unless  such  employer  shall,  at  least  thirty 
days  prior  to  the  expiration  of  such  first  or  any  suc- 
ceeding year,  file  in  the  office  of  said  board  a  notice  in 
writing  to  the  effect  that  he  desires  to  withdraw  his 
election  to  be  subject  to  the  provisions  of  this  act: 
Provided,  however,  That  such  employer  so  electing 


148     Bradbury's  workmen's  compensation  law 

Michigan 

to  become  subject  to  the  provisions  of  this  act  shall, 
within  ten  days  after  the  approval  by  said  board  of 
his  election  filed  as  aforesaid,  post  in  a  conspicuous 
plac6  in  his  plant,  shop,  minor  place  of  work,  or  if 
such  employer  be  a  transportation  company,  at  its 
several  stations  and  docks,  notice  in  the  form  as  pre- 
scribed and  furnished  by  the  industrial  accident 
board  to  the  effect  that  he  accepts  and  will  be  bound 
by  the  provisions  of  this  act." 

"§  7.  The  term  'employe'  as  used  in  this  act  shall 
be  construed  to  mean: 

"1.  Every  person  in  the  service  of  the  State,  or  of 
any  county,  city,  township,  incorporated  village  or 
school  district  therein,  under  any  appointment,  or 
contract  of  hire,  express  or  implied,  oral  or  written, 
except  any  ofl&cial  of  the  State,  or  of  any  county,  city, 
township,  incorporated  village  or  school  district 
therein:  Provided,  That  one  employed  by  a  con- 
tractor who  has  contracted  with  a  county,  city,  town- 
ship, incorporated  village,  school  district  or  the  State, 
through  its  representatives,  shall  not  be  considered 
an  employe  of  the  State,  county,  city,  township,  in- 
corporated village  or  school  district  which  made  the 
contract; 

"2.  Every  person  in  the  service  of  another  under 
any  contract  of  hire,  express  or  implied,  oral  or 
written,  including  aliens,  and  also  including  minors 
who  are  legally  permitted  to  work  under  the  laws  of 
the  State  who,  for  the  purposes  of  this  act,  shall  be 
considered  the  same  and  have  the  same  power  to  con- 
tract as  adult  employes,  but  not  including  any  person 
i  whose  employment  is  but  casual  or  is  not  in  the  usual 
course  of  the  trade,  business,  profession  or  occupation 
of  his  employer. 

"§  8.  Any  employe  asdefined  in  subdivision  one  of 


TO  WHOM  ACT  APPLIES  14d 

Michigan 

the  preceding  section  shall  be  subject  to  the  provisions 
of  this  act  and  of  any  act  amendatory  thereof.  Any 
employe  as  defined  in  subdivision  two  of  the  preceding 
section  shall  be  deemed  to  have  accepted  and  shall  be 
subject  to  the  provisions  of  this  act  and  of  any  act 
amendatory  thereof  if,  at  the  time  of  the  accident 
upon  which  liability  is  claimed: 

"1.  The  employer  charged  with  such  liability  is 
subject  to  the  provisions  of  this  act,  whether  the  em- 
ploye has  actual  notice  thereof  or  not;  and 

"2.  Such  employe  shall  not,  at  the  time  of  entering 
into  his  contract  of  hire,  express  or  implied,  with  such 
employer,  have  given  to  his  employer  notice  in  writing 
that  he  elects  not  to  be  subject  to  the  provisions  of 
this  act;  or,  in  the  event  that  such  contract  of  hire  was 
made  before  such  employer  became  subject  to  the 
provisions  of  this  act,  such  employe  shall  have  given 
to  his  employer  notice  in  writing  that  he  elects  not  to 
be  subject  to  such  provisions,  or  without  giving  either 
of  such  notices  shall  have  remained  in  the  service  of 
such  employer  for  thirty  days  after  the  employer  has 
filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act.  An  employe  who  has  given  notice 
to  his  employer  in  writing  as  aforesaid  that  he  elects 
not  to  be  subject  to  the  provisions  of  this  act,  may 
waive  such  claim  by  a  notice  in  writing,  which  shall 
take  effect  five  days  after  it  is  delivered  to  the  em- 
ployer or  his  agent." 

"Part  II,  §  2.  If  the  employe  is  injured  by  reason 
of  his  intentional  and  willful  misconduct,  he  shall  not 
receive  compensation  under  the  provisions  of  this 
Act." 

"Part  II,  §  14.  If  an  injured  employ^  is  mentally 
incompetent  or  is  a  minor  at  the  time  when  any  right 
or  privilege  accrues  to  him  under  this  act,  his  guardian 


150    Bradbury's  workmen's  compensation  law 

Nevada 

or  next  friend  may  in  his  behalf  claim  and  exercise 
such  right  or  privilege." 

As  to  the  method  of  payment,  which  an  employer 
must  specify  in  his  notice  accepting  the  compensation 
principle  see  Part  IV,  §§  1-4,  Chapter  XXVII,  post, 
page  505. 

"Part  VI,  §4.  The  provisions  of  this  act  shall 
apply  to  employers  and  workmen  engaged  in  in- 
trastate commerce,  and  also  to  those  engaged  in 
interstate  or  foreign  commerce,  for  whom  a  rule  of 
liability  or  method  of  compensation  has  been  or  may 
be  established  by  the  congress  of  the  United  States, 
only  to  the  extent  that  their  mutual  connection  with 
intrastate  work  may  and  shall  be  clearly  separable 
and  distinguishable  from  interstate  or  foreign  com- 
merce, except  that  any  such  employer  and  any  of  his 
workmen  working  only  in  this  State,  may,  subject  to 
the  approval  of  the  industrial  accident  board,  and  so 
far  as  not  forbidden  by  any  act  of  congress,  volun- 
tarily accept  and  become  bound  by  the  provisions  of 
this  act  in  like  manner  and  with  the  same  force  and 
effect  in  all  respects  as  is  hereinbefore  provided  for 
other  employers  and  their  workmen." 

NEVADA 

(L.  1911,  c.  183) 

"  §  1.  If  in  any  employment  to  which  this  act  applies 
personal  injury  disabling  a  workman  from  his  regular 
service  for  more  than  ten  days,  or  death  by  accident, 
arising  out  of  and  in  the  course  of  employment  is 
caused  to  a  workman,  the  workman  so  injured,  or  in 
case  of  death,  the  member  of  his  family,  as  hereinafter 


TO   WHOM   ACT   APPLIES  151 

Nevada 

defined,  shall  be  entitled  to  receive  from  his  employer, 
and  the  said  employer  shall  be  liable  to  pay,  the  com- 
pensation provided  for  in  this  act;  provided,  that  re- 
covery hereunder  shall  not  be  barred  where  such  em- 
ploy6  may  have  been  guilty  of  contributory  negligence 
where  such  contributory  negligence  is  slight  and  that 
of  the  employer  is  gross  in  comparison,  but  in  which 
event  the  compensation  may  be  diminished  in  propor- 
tion to  the  amount  of  negligence  attributable  to  such 
employ^,  and  it  shall  be  conclusively  presumed  that 
such  employ^  was  not  guilty  of  contributory  negli- 
gence in  any  case  where  the  violation  of  any  statute 
enacted  for  the  safety  of  employes  contributed  to  such 
employe's  injury;  and  it  shall  not  be  adefense:  (1)  That 
the  employ^  either  expressly  or  impliedly  assumed  the 
risk  of  the  hazard  complained  of;  (2)  That  the  injury 
or  death  was  caused  in  whole  or  in  part  by  the  want  of 
ordinary  or  reasonable  care  of  a  fellow  servant.  No 
contract,  rule  or  regulation  shall  exempt  the  employer 
from  any  of  the  provisions  of  the  preceding  section  of 
this  act. 

*'§2.  'Employer'  includes  any  body  of  persons 
corporate  or  incorporate  and  the  legal  personal  rep- 
resentative of  a  deceased  employer.  'Workman'  in- 
cludes every  person  who  is  engaged  in  an  employment 
to  which  this  act  applies,  whether  by  way  of  manual 
labor  or  otherwise,  and  where  his  agreement  is  one  of 
service  or  apprenticeship  or  otherwise,  and  is  ex- 
pressed or  implied,  is  oral  or  in  writing.  Any  reference 
to  a  workman  who  has  been  injured  shall,  where  the 
workman  is  dead,  include  a  reference  to  his  legal  per- 
sonal representative  or  to  his  dependents  or  other 
person  to  whom  compensation  is  payable.  'Depend- 
ents' means  wife,  father,  mother,  husband,  sister, 
brother,  child  or  grandchild;  provided,  that  they  were 


152     Bradbury's  workmen's  compensation  law 

Nevada 

wholly  or  partly  dependent  upon  the  earnings  of  the 
workman  at  the  time  of  his  death. 

"§  3.  This  act  shall  apply  to  workmen  engaged  in 
manual  or  mechanical  labor  in  the  following  employ- 
ments within  this  State,  each  of  which  is  hereby  de- 
termined to  be  especially  dangerous,  in  which  from  the 
nature,  condition  or  means  of  prosecution  of  the  work 
therein,  extraordinary  risks  to  the  life  and  limb  of 
workmen  engaged  therein  are  inherent,  necessarily  or 
substantially  unavoidable,  and  to  each  of  which  em- 
ployments it  is  deemed  necessary  to  establish  a  new 
system  of  compensation  for  accidents  to  workmen. 

"(a)  The  erection  or  demolition  of  any  bridge  or 
building  in  which  there  is,  or  in  which  the  plans  or 
specifications  require  iron  or  steel  framework; 

"  (&)  The  operation  of  elevators,  elevating  machines 
or  derricks  or  hoisting  apparatus  used  within  or  on  the 
outside  of  any  bridge  or  building  for  the  conveying  of 
material  in  connection  with  the  erection  or  demolition 
of  such  bridge  or  building; 

"  (c)  Works  on  scaffolds  of  any  kind  elevated  twenty 
feet  or  more  above  the  ground,  water  or  floor  beneath, 
in  the  erection,  construction,  painting,  alteration  or 
repair  of  buildings,  bridges  or  structures; 

*'(d)  Construction,  operation,  alteration,  or  repair 
of  wires,  cables,  switchboards  or  apparatus  charged 
with  electric  current; 

"(e)  The  operation  on  railroads  of  locomotives, 
engines,  trains,  motors  or  cars  propelled  by  gravity, 
steam,  electricity  or  other  mechanical  power,  or  the 
construction  or  repairs  of  railroad  tracks  and  roadbeds 
over  which  such  locomotives,  engines,  trains,  motors, 
or  cars  are  operated; 

"(/)  Construction,  operation,  alteration,  or  repairs 
of  locomotives,  engines,  trains,  motors  or  cars  in  or 


TO  WHOM  ACT  APPLIES  153 

New  Hampshire 

about  the  shops,  round-houses,  or  other  places,  where 
the  same  is  done; 

"(g)  Construction,  operation,  alteration  or  repairs 
to  mills,  smelters  or  mines,  including  every  shaft  or 
pit  in  the  course  of  being  sunk,  and  every  crosscut, 
drift,  station,  winze,  level  or  inclined  planes  through 
which  workmen  pass  to  and  from  work,  and  all  works, 
machinery,  tramways,  ladders  or  passages,  both  below 
ground  and  above  ground,  in  and  adjacent  to  any 
mine; 

"(h)  All  work  necessitating  dangerous  proximity 
to  gunpowder,  blasting  powder,  dynamite  or  any 
other  explosives,  where  the  same  are  used  as  instru- 
mentalities of  the  industry; 

"  (i)  The  construction  of  tunnels.  The  employers 
to  whom  this  act  shall  apply  shall  be  any  person  or 
persons,  association,  such  industry  as  aforesaid." 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

"§  1.  This  act  shall  apply  only  to  workmen  engaged 
in  manual  or  mechanical  labor  in  the  employments 
described  in  this  section,  which,  from  the  nature,  con- 
ditions or  means  of  prosecution  of  such  work,  are 
dangerous  to  the  life  and  limb  of  workmen  engaged 
therein,  because  in  them  the  risks  of  employment  and 
the  danger  of  injury  caused  by  fellow  servants  are 
great  and  difficult  to  avoid. 

"  (a)  The  operation  on  steam  or  electric  railroads 
of  locomotives,  engines,  trains  or  cars,  or  the  construc- 
tion, alteration,  maintenance  or  repair  of  steam  rail- 
road tracks  or  roadbeds  over  which  such  locomotives, 
engines,  trains  or  cars  are  or  are  to  be  operated. 

"  (6)  Work  in  any  shop,  mill,  factory  or  other  place 


154    Bradbury's  workmen's  compensation  law 

New  Hampshire 

on,  in  connection  with  or  in  proximity  to  any  hoisting 
apparatus,  or  any  machinery  propelled  or  operated  by 
steam  or  other  mechanical  power  in  which  shop,  mill, 
factory  or  other  place  five  or  more  persons  are  en- 
gaged in  manual  or  mechanical  labor. 

"  (c)  The  construction,  operation,  alteration  or  re- 
pair of  wires  or  lines  of  wires,  cables,  switch  boards  or 
apparatus,  charged  with  electric  currents. 

"(d)  All  work  necessitating  dangerous  proximity 
to  gunpowder,  blasting  powder,  dynamite  or  any  other 
explosives,  where  the  same  are  used  as  instrumental- 
ities of  the  industry,  or  to  any  steam  boiler  owned  or 
operated  by  the  employer,  provided  injury  is  occa- 
sioned by  the  explosion  of  any  such  boiler  or  explosive. 

"  (e)  Work  in  or  about  any  quarry,  mine  or  foundry. 

"  As  to  each  of  said  employments  it  is  deemed  nec- 
essary to  establish  a  new  system  of  compensation  for 
accidents  to  workmen. 

"  §  2.  If,  in  the  course  of  any  of  the  employments 
above  described,  personal  injury  by  accident  arising 
out  of  and  in  the  course  of  the  employment  is  caused 
to  any  workman  employed  therein,  in  whole  or  in  part, 
by  failure  of  the  employer  to  comply  with  any  statute, 
or  with  any  order  made  under  authority  of  law,  or 
by  the  negligence  of  the  employer  or  any  of  his  or  its 
officers,  agents  or  employes,  or  by  reason  of  any  de- 
fect or  insufficiency  due  to  his,  its  or  their  negligence  in 
the  condition  of  his  or  its  plant,  ways,  works,  machin- 
ery, cars,  engines,  equipment,  or  appliances,  then  such 
employer  shall  be  liable  to  such  workman  for  all  dam- 
ages occasioned  to  him,  or,  in  case  of  his  death,  to  his 
personal  representatives  for  all  damages  now  recover- 
able under  the  provisions  of  Chap.  191  of  the  Public 
Statutes.^    The  workman  shall  not  be  held  to  have 

*  See  provisions,  c.  191,  Pub.  Stat. 


TO   WHOM  ACT  APPLIES  155 

New  Hampshire 

assumed  the  risk  of  any  injury  due  to  any  cause  speci- 
fied in  this  section;  but  there  shall  be  no  liabiUty  under 
this  section  for  any  injury  to  which  it  shall  be  made 
to  appear  by  a  preponderance  of  evidence  that  the 
negligence  of  the  plaintiff  contributed.^  The  damages 
provided  for  by  this  section  shall  be  recovered  in  an 
action  on  the  case  for  negligence." 

"  §  3.  The  provisions  of  section  2  of  this  act  shall 
not  apply  to  any  employer  who  shall  have  filed  with 
the  Commissioner  of  Labor  his  declaration  in  writing 
that  he  accepts  the  provisions  of  this  act  as  contained 
in  the  succeeding  sections,  and  shall  have  satisfied 
the  Commissioner  of  Labor  of  his  financial  ability  to 
comply  with  its  provision,  or  shall  have  filed  with  the 
Commissioner  of  Labor  a  bond,  in  such  form  and 
amount  as  the  Commissioner  may  prescribe,  condi- 
tioned on  the  discharge  by  such  employer  of  all  lia- 
bihty  incurred  under  this  act.  Such  bond  shall  be 
enforced  by  the  Commissioner  of  Labor  for  the  benefit 
of  all  persons  to  whom  such  employer  may  become 
liable  under  this  act  in  the  same  manner  as  probate 
bonds  are  enforced.  The  Commissioner  may,  from 
time  to  time,  order  the  filing  of  new  bonds,  when  in 
his  judgment  such  bonds  are  necessary;  and  after 
thirty  days  from  the  communication  of  such  order 
to  any  employer,  such  employer  shall  be  subject  to 
the  provisions  of  section  2  of  this  act,  until  such  order 
has  been  complied  with.  The  employer  may  at  any 
time  revoke  his  acceptance  of  the  provisions  of  the 
succeeding  sections  of  this  act,  by  filing  with  the 
Commissioner  of  Labor  a  declaration  to  that  effect, 

*The  New  Hampshire  statute  specifically  preserves  the  defense 
of  contributory  negligence.  But  such  negligence  must  be  proved 
by  a  preponderance  of  the  evidence.  This  is  to  all  intents  and  pur- 
poses making  contributory  negligence  an  affirmative  defense. 


156     Bradbury's  workmen's  compensation  law 

New  Jersey 

and  by  posting  copies  of  such  declaration  in  conspicu- 
ous places  about  the  place  where  his  workmen  are 
employed.  Any  person  aggrieved  by  any  decision  of 
the  Commissioner  under  this  section  may  apply  by 
petition  to  any  Justice  of  the  Superior  Court  for  a 
review  of  such  decision  and  said  Justice  on  notice  and 
hearing  shall  make  such  order  affirming,  reversing  or 
modifying  such  decision  as  justice  may  require;  and 
such  order  shall  be  final. 

"Such  employer  shall  be  liable  to  all  workmen  en- 
gaged in  any  of  the  employments  specified  in  section  1/ 
for  any  injury  arising  out  of  and  in  the  course  of  their 
employment,  in  the  manner  provided  in  the  following 
sections  of  this  act. 

"Provided,  That  the  employer  shall  not  be  liable 
in  respect  of  any  injury  which  does  not  disable  the 
workman  for  a  period  of  at  least  two  weeks  from  earn- 
ing full  wages  at  the  work  at  which  he  was  employed, 
and, 

"Provided,  That  the  employer  shall  not  be  liable  in 
respect  to  any  injury  to  the  workman  which  is  caused 
in  whole  or  in  part  by  the  intoxication,  violation  of 
law  or  serious  or  willful  misconduct  of  the  workman. 

"  Provided,  further.  That  the  employer  shall  at  the 
election  of  the  workman,  or  his  personal  representa- 
tive, be  liable  under  the  provisions  of  section  2  of  this 
act  for  all  injury  caused  in  whole  or  in  part  by  willful 
failure  of  the  employer  to  comply  with  any  statute,  or 
with  any  order  made  under  authority  of  law." 

NEW  JERSEY 

(L.  1911,  0.  95) 

To  avoid  the  constitutional  question  which  is  feared 
in  these  acts  and  which  is  discussed  in  the  case  of 
^  See  ante,  page  153. 


TO   WHOM   ACT   APPLIES  157 

New  Jersey 

Ives  V.  South  Buffalo  Ry.  Co,,  201  N.  Y.  271,  the 
New  Jersey  legislature  adopted  an  elective  principle 
which  has  been  followed  largely  in  other  States.  That 
is,  both  employer  and  employe  are  presimaed  to  have 
elected  to  have  waived  their  common-law  rights  of 
actions  and  defenses,  unless  they  have  entered  into  a 
contract  to  the  contrary  or  unless  either  has  given  a 
notice  in  writing  that  he  will  not  be  bound  by  the 
provisions  of  the  Compensation  Act.  New  Jersey 
seems  to  have  been  the  first  State  to  have  grasped  and 
utilized  this  principle  as  a  possible  escape  from  the  con- 
stitutional question  raised  in  the  Ives  case. 

"SECTION  II 
"Elective  Compensation 

"7.  Compensation  under  agreement.  Exceptions. 
When  employer  and  employe  shall  by  agreement, 
either  express  or  implied,  as  hereinafter  provided,  ac- 
cept the  provisions  of  section  II  of  this  act,  compensa- 
tion for  personal  injuries  to  or  for  the  death  of  such 
employ^  by  accident  arising  out  of  and  in  the  course 
of  his  employment  shall  be  made  by  the  employer 
without  regard  to  the  negligence  of  the  employer, 
according  to  the  schedule  contained  in  paragraph 
eleven,  in  all  cases  except  when  the  injury  or  death  is 
intentionally  self-inflicted,  or  when  intoxication  is  the 
natural  and  proximate  cause  of  injury,  and  the  burden 
of  proof  of  such  fact  shall  be  upon  the  employer. 

"§II,  8.  Agreement  deemed  surrender  of  rights  to 
other  method.  Such  agreement  shall  be  a  surrender 
by  the  parties  thereto  of  their  rights  to  any  other 
method,  form  or  amount  of  compensation  or  deter- 
mination thereof  than  as  provided  in  section  II  of  this 
act,  and  an  acceptance  of  all  the  provisions  of  sec- 


158    Bradbury's  workmen's  compensation  law 

New  Jersey 

tion  II  of  this  act,  and  shall  bind  the  employ^  himself 
and  for  compensation  for  his  death  shall  bind  his  per- 
sonal representatives,  his  widow  and  next  of  kin,  as 
well  as  the  employer,  and  those  conducting  his  busi- 
ness during  bankruptcy  or  insolvency.^ 

"§9.  Employment  subject  to  this  act.  Every  con- 
tract of  hiring  made  subsequent  to  the  time  provided 
for  this  act  to  take  effect  shall  be  presumed  to  have 
been  made  with  reference  to  the  provisions  of  sec- 
tion II  of  this  act,  and  unless  there  be  as  a  part  of  such 
contract  an  express  statement  in  writing,  prior  to  any 
accident,  either  in  the  contract  itself  or  by  written 
notice  from  either  party  to  the  other,  that  the  pro- 
visions of  section  II  of  this  act  are  not  intended  to 
apply,  then  it  shall  be  presumed  that  the  parties  have 
accepted  the  provisions  of  section  II  of  this  act  and 
have  agreed  to  be  bound  thereby.  In  the  employment 
of  minors,  section  II  shall  be  presumed  to  apply  unless 
the  notice  be  given  by  or  to  the  parent  or  guardian  of 
the  minor. 

"§  10.  Termination  of  contract.  The  contract  for 
the  operation  of  the  provisions  of  section  II  of  this 
act  may  be  terminated  by  either  party  upon  sixty 
days'  notice  in  writing  prior  to  any  accident."  ^ 

"Chapter  368— Laws  of  1911 

"A  supplement  to  an  act  entitled  'An  act  prescrib- 
ing the  liability  of  an  employer  to  make  compensation 
for  injuries  received  by  an  employ^  in  the  course  of 
employment,  establishing  an  elective  schedule  of  com- 
pensation, and  regulating  procedure  for  the  determi- 

1  See  §  III,  paragraph  25,  which  is  discussed  in  Chapter  XXXVII, 
post,  page  587,  and  Chapter  I,  ante,  page  29,  as  to  whether  or  not 
the  common-law  right  of  action  is  eliminated  by  this  section. 

*  See  following  supplemental  act,  L.  1911,  c.  368. 


TO   WHOM   ACT   APPLIES  159 

Ohio 

nation  of  liability  and  compensation  thereunder,' 
approved  April  4  one  thousand  nine  hundred  and 
eleven. 

"Be  it  enacted  by  the  Senate  and  General  Assembly 
of  the  State  of  New  Jersey: 

"1.  Every  contract  of  hiring,  verbal,  written  or 
implied  from  circumstances,  now  in  operation  or  made 
or  implied  prior  to  the  time  limited  for  the  act  to  which 
this  act  is  a  supplement  to  take  effect,  shall,  after  this 
act  takes  effect,  be  presumed  to  continue  subject  to 
the  provisions  of  section  two  of  the  act  to  which  this 
act  is  a  supplement,  unless  either  party  shall,  prior  to 
accident,  in  writing,  notify  the  other  party  to  such 
contract  that  the  provisions  of  section  two  of  the  act 
to  which  this  act  is  a  supplement  are  not  intended  to 
apply. 

"2.  This  act  shall  take  effect  on  the  fourth  day  of 
July  next  succeeding  its  passage  and  approval. 

"May  2,  1911.    Approved  by  Governor." 

OHIO 

(L.  1911,  c.  000) 

"§20-1.  Duties  of  employers  who  pay  fund.  Any 
employer  who  employs  five  or  more  workmen  or  oper- 
atives regularly  in  the  same  business,  or  in  or  about  the 
same  establishment  who  shall  pay  into  the  state  insur- 
ance fund  the  premiums  provided  by  this  act,  shall  not 
be  liable  to  respond  in  damages  at  common  law  or  by 
statute,  save  as  hereinafter  provided,^  for  injuries  or 
death  of  any  such  employe,  wherever  occurring,  dur- 
ing the  period  covered  by  such  premiums,  provided 

1  This  means  as  provided  in  §  21-2.  See  Chapter  I,  ante,  page  31. 
The  employ^  may  elect  t<i  sue  for  "damages"  when  the  injury 
occurs  by  reason  of  a  willful  act  on  the  part  of  the  employer,  or  the 
violation  of  any  law  or  ordinance  respecting  safety  devices. 


160    Bradbury's  workmen's  compensation  law 

Ohio 

the  injured  employ^  has  remained  in  his  service  with 
notice  that  his  employer  has  paid  into  the  state  in- 
surance fund  the  premiums  provided  by  this  act;  the 
continuation  in  the  service  of  such  employer  with  such 
notice,  shall  be  deemed  a  waiver  by  the  employe  of 
his  right  of  action  as  aforesaid. 

"Each  employer  paying  the  premiums  provided  by 
this  act  into  the  state  insurance  fund  shall  post  in 
conspicuous  places  about  his  place  or  places  of  busi- 
ness typewritten  or  printed  notices  stating  the  fact 
that  he  has  made  such  payment;  and  the  same,  when 
so  posted,  shall  constitute  sufficient  notice  to  his  em- 
ployes of  the  fact  that  he  has  made  such  payment; 
and  of  any  subsequent  payments  he  may  make  after 
such  notices  have  been  posted. 

"§  20-2.  Premiums  to  he  paid.  For  the  purpose  of 
creating  such  state  insurance  fund,  each  employer 
who  employs  five  or  more  workmen  or  operatives 
regularly  in  the  same  business,  or  in  or  about  the  same 
establishment,  and  his  employes  in  this  State,  having 
elected  to  accept  the  provisions  of  this  act,  shall  pay, 
on  or  before  January  1,  1912,  and  semi-annually  there- 
after, the  premiums  of  liability  risk  in  the  classes  of 
employment  as  may  be  determined  and  published  by 
the  State  Liability  Board  of  Awards.  The  said  em- 
ployers for  themselves  and  their  employes  shall  make 
such  payments  to  the  state  treasurer  of  Ohio,  who  shall 
receive  and  place  the  same  to  the  credit  of  such  state 
insurance  fund.  The  premiums  provided  for  in  this 
act  shall  be  paid  by  the  employer  and  employes  in  the 
following  proportions,  to  wit:  Ninety  per  cent  of  the 
premium  shall  be  paid  by  the  employer  and  ten  per 
cent  by  the  employes.  Each  employer  is  authorized 
to  deduct  from  the  pay  roll  of  his  employes  ten  per 
cent  of  the  said  premiums  for  any  premium  period  in 


TO   WHOM   ACT   APPLIES  161 

Rhode  Island 

proportion  to  the  pay  roll  of  such  employes;  no  deduc- 
tion shall  be  made  except  for  that  portion  of  the 
premium  period  antedating  such  pay  roll.  Each  em- 
ployer shall  give  a  receipt  to  each  employe  showing 
the  amount  which  has  been  deducted  and  paid  into 
the  state  insurance  fund." 

See  also  §  21-2,  reprinted  in  Chapter  I,  ante,  page  31, 
for  the  efifect  on  the  liability  of  the  employer  of  will- 
fully inflicting  an  injury  on  an  employ^  or  of  an  in- 
jury resulting  from  failure  to  comply  with  statutes 
or  orcjinance  relating  to  safety  devices. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"  Art.  I,  §  2.  Exceptions.  The  provisions  of  this 
act  shall  not  apply  to  actions  to  recover  damages  for 
personal  injuries,  or  for  death  resulting  from  personal 
injuries,  sustained  by  employes  engaged  in  domestic 
service  or  agriculture. 

"§  3.  Exceptions.  The  provisions  of  this  act  shall 
not  apply  to  employers  who  employ  five  or  less  work- 
men or  operatives  regularly  in  the  same  business,  but 
such  employers  may,  by  complying  with  the  pro- 
visions of  section  5  of  this  Article  become  subject  to 
the  provisions  of  this  Act." 

(Section  4  provides  that  as  to  the  employers  who 
elect  to  pay  compensation  his  employes  shall  have  no 
right  of  action  against  him  for  personal  injuries  at 
common  law  or  otherwise.    See  Chapter  I.) 

"  §  5.  Election,  how  made.  Such  election  on  the 
part  of  the  employer  shall  be  made  by  filing  with  the 
commissioner  of  industrial  statistics  a  written  state- 
ment to  the  effect  that  he  accepts  the  provisions  of 
11 


162    Bradbury's  workmen's  compensation  law 

Rhode  Island 

this  act,  and  by  giving  reasonable  notice  of  such 
election  to  his  workmen  by  posting  and  keeping  con- 
tinuously posted  copies  of  such  statement  in  con- 
spicuous places  about  the  place  where  his  workmen 
are  employed,  the  filing  of  which  statement  and  the 
giving  of  which  notice  shall  operate  to  subject  such 
employer  to  the  provisions  of  this  act  and  all  acts 
amendatory  thereof  for  the  term  of  one  year  from  the 
date  of  the  filing  of  such  statement,  and  thereafter, 
without  further  act  on  his  part,  for  successive  terms 
of  one  year,  each,  unless  such  employer  shall,  at  least 
sixty  days  prior  to  the  expiration  of  such  first  or  any 
succeeding  year,  file  with  said  commissioner  a  notice 
in  writing  to  the  effect  that  he  desires  to  withdraw  his 
election  to  be  subject  to  the  provisions  of  this  act  and 
shall  give  reasonable  notice  to  his  workmen  as  above 
provided.  Blank  forms  of  election  and  withdrawal  as 
herein  provided,  shall  be  furnished  by  said  commis- 
sioner. 

"§  6.  Election  hy  employe.  An  employe  of  an  em- 
ployer who  shall  have  elected  to  become  subject  to 
the  provisions  of  this  act  as  provided  in  section  5  of 
this  Article  shall  be  held  to  have  waived  his  right  of 
action  at  common  law  to  recover  damages  for  personal 
injuries,  if  he  shall  not  have  given  his  employer  at  the 
time  of  his  contract  of  hire  notice  in  writing  that  he 
claimed  such  right,  and  within  ten  days  thereafter 
have  filed  a  copy  thereof  with  the  commissioner  of 
industrial  statistics,  or,  if  the  contract  of  hire  was 
made  before  the  employer  so  elected,  if  the  employ^ 
shall  not  have  given  the  said  notice  and  filed  the  same 
with  said  commissioner  within  ten  days  after  notice  by 
the  employer,  as  above  provided,  of  such  election;  and 
such  waiver  shall  continue  in  force  for  the  term  of  one 
year,  and  thereafter  without  further  act  on  his  part, 


TO   WHOM   ACT   APPLIES  163 

Rhode  Island 

for  successive  terms  of  one  year,  each,  unless  such 
employ^  shall  at  least  sixty  days  prior  to  the  expira- 
tion of  such  first  or  any  succeeding  year,  file  with  the 
said  commissioner  a  notice  in  writing  to  the  effect  that 
he  desires  to  claim  his  said  right  of  action  at  common 
law  and  within  ten  days  thereafter  shall  give  notice 
thereof  to  his  employer.  A  minor  working  at  an  age 
legally  permitted  under  the  laws  of  this  State  shall  be 
deemed  sui  juris  for  the  purpose  of  this  act  and  no 
other  person  shall  have  any  cause  of  action  or  right  to 
compensation  for  an  injury  to  such  minor  employ 6 
except  as  expressly  provided  in  this  act;  but  if  said 
minor  shall  have  a  parent  living  or  a  guardian,  such 
parent  or  guardian,  as  the  case  may  be,  may  give  the 
notice  and  file  a  copy  of  the  same  as  herein  provided 
by  this  section,  and  such  notice  shall  bind  the  minor 
in  the  same  manner  that  adult  employes  are  bound 
under  the  provisions  of  this  act.  In  case  no  such 
notice  is  given,  such  minor  shall  be  held  to  have 
waived  his  right  of  action  at  common  law  to  recover 
damages  for  personal  injuries.  Any  employe,  or  the 
parent  or  guardian  of  any  minor  employe,  who  has 
given  notice  to  the  employer  that  he  claimed  his  right 
of  action  at  common  law  may  waive  such  claim  by  a 
notice  in  writing  which  shall  take  effect  five  days  after 
the  delivery  to  the  employer  or  his  agent. 

"Art.  II,  §  1.  To  whom  made.  If  an  employ^  who 
has  not  given  notice  of  his  claim  of  common-law  rights 
of  action  or  who  has  given  such  notice  and  has  waived 
the  same,  as  provided  in  section  6  of  Article  I,  receives 
a  personal  injury  by  accident  arising  out  of  and  in  the 
course  of  his  employment,  he  shall  be  paid  compensa- 
tion, as  hereinafter  provided,  by  the  employer  who 
shall  have  elected  to  become  subject  to  the  provisions 
of  this  act. 


164     Bradbury's  workmen's  compensation  law 

Washington 

"§2.  Willful  injury.  No  compensation  shall  be 
allowed  for  the  injury  or  death  of  an  employe  where  it 
is  proved  that  his  injury  or  death  was  occasioned  by 
his  willful  intention  to  bring  about  the  injury  or  death 
of  himself  or  of  another,  or  that  the  same  resulted 
from  his  intoxication  while  on  duty." 


WASHINGTON 

(L.  1911,  c.  74) 

"  §  2.  Enumeration  of  extra  hazardous  works.  There 
is  a  hazard  in  all  employment,  but  certain  employ- 
ments have  come  to  be,  and  to  be  recognized  as 
being  inherently  constantly  dangerous.  This  act  is 
intended  to  apply  to  all  such  inherently  hazardous 
works  and  occupations,  and  it  is  the  purpose  to  em- 
brace all  of  them,  which  are  within  the  legislative 
jurisdiction  of  the  State,  in  the  following  enumeration, 
and  they  are  intended  to  be  embraced  within  the  term 
'extra  hazardous'  wherever  used  in  this  act,  to  wit: 

"Factories,  mills  and  workshops  where  machinery 
is  used;  printing,  electrotyping,  photo-engraving  and 
stereotyping  plants  where  machinery  is  used;  found- 
ries, blast  furnaces,  mines,  wells,  gas  works,  water- 
works, reduction  works,  breweries,  elevators,  wharves, 
docks,  dredges,  smelters,  powder  works;  laundries 
operated  by  power;  quarries;  engineering  works;  log- 
ging, lumbering  and  ship  building  operations;  logging, 
street  and  interurban  railroads;  buildings  being  con- 
structed, repaired,  moved  or  demoUshed;  telegraph, 
telephone,  electric  light  or  power  plants  or  lines,  steam 
heating  or  power  plants,  steamboats,  tugs,  ferries  and 
railroads.  If  there  be  or  arise  any  extra  hazardous 
occupation  or  work  other  than  those  hereinabove 
enumerated,  it  shall  come  under  this  act,  and  its  rate 


TO  WHOM  ACT  APPLIES  165 

Washington 

of  contribution  to  the  accident  fund  hereinafter  es- 
tablished, shall  be,  until  fixed  by  legislation,  deter- 
mined by  the  department  hereinafter  created,  upon 
the  basis  of  the  relation  which  the  risk  involved  bears 
to  the  risks  classified  in  section  4. 

"  §  3.  Definitions.  In  the  sense  of  this  act  words 
employed  mean  as  here  stated,  to-wit: 

"Factories  mean  undertakings  in  which  the  business 
of  working  at  commodities  is  carried  on  wdth  power- 
driven  machinery,  either  in  manufacture,  repair  or 
change,  and  shall  include  the  premises,  yard  and 
plant  of  the  concern. 

"Workshop  means  any  plant,  yard,  premises, 
room  or  place  wherein  power-driven  machinery  is 
employed  and  manual  labor  is  exercised  by  way  of 
trade  for  gain  or  otherwise  in  or  incidental  to  the 
process  of  making,  altering,  repairing,  printing  or 
ornamenting,  finishing  or  adapting  for  sale  or  other- 
wise any  article  or  part  of  article,  machine  or  thing, 
over  which  premises,  room  or  place  the  employer  of 
the  person  working  therein  has  the  right  of  access  or 
control. 

"Mill  means  anj^  plant,  premises,  room  or  place 
where  machinery  is  used,  any  process  of  machinery, 
changing,  altering  or  repairing  any  article  or  com- 
modity for  sale  or  otherwise,  together  with  the  yards 
and  premises  which  are  a  part  of  the  plant,  including 
elevators,  warehouses  and  bunkers. 

"Mine  means  any  mine  where  coal,  clay,  ore, 
mineral,  gypsum  or  rock  is  dug  or  mined  under- 
ground. 

"Quarry  means  an  open  cut  from  which  coal  is 
mined,  or  clay,  ore,  mineral,  gypsum,  sand,  gravel 
or  rock  is  cut  or  taken  for  manufacturing,  building 
or  construction. 


166    Bradbury's  workmen's  compensation  law 

Washington 

"Engineering  work  means  any  work  of  construc- 
tion, improvement  or  alteration  or  repair  of  build- 
ings, structures,  streets,  highways,  sewers,  street  rail- 
ways, railroads,  logging  roads,  interurban  railroads, 
harbors,  docks,  canals;  electric,  steam  or  water  power 
plants;  telegraph  and  telephone  plants  and  lines; 
electric  light  or  power  lines,  and  includes  any  other 
works  for  the  construction,  alteration  or  repair  of 
which  machinery  driven  by  mechanical  power  is  used. 

"Except  when  otherwise  expressly  stated,  em- 
ployer means  any  person,  body  of  persons,  corporate 
or  otherwise,  and  the  legal  personal  representatives 
of  a  deceased  employer,  all  while  engaged  in  this 
State  in  any  extra  hazardous  work. 

"  Workman  means  every  person  in  this  State,  who, 
after  September  30,  1911,  is  engaged  in  the  employ- 
ment of  an  employer  carrying  on  or  conducting  any 
of  the  industries  scheduled  or  classified  in  section  4, 
whether  by  way  of  manual  labor  or  otherwise,  and 
whether  upon  the  premises  or  at  the  plant  or,  he  being 
in  the  course  of  his  employment,  away  from  the  plant 
of  his  employer:  Provided,  however,  That  if  the  in- 
jury to  a  workman  occurring  away  from  the  plant 
of  his  employer  is  due  to  the  negligence  or  wrong  of 
another  not  in  the  same  employ,  the  injured  work- 
man, or  if  death  result  from  the  injury,  his  widow, 
children  or  dependents,  as  the  case  may  be,  shall 
elect  whether  to  take  under  this  act  or  seek  a  remedy 
against  such  other,  such  election  to  be  in  advance 
of  any  suit  under  this  section;  and  if  he  take  under 
this  act,  the  cause  of  action  against  such  other  shall 
be  assigned  to  the  State  for  the  benefit  of  the  accident 
fund;  if  the  other  choice  is  made,  the  accident  fund 
shall  contribute  only  the  deficiency,  if  any,  between 
the  amount  of  recovery  against  such  third  person 


TO   WHOM   ACT   APPLIES  167 

Washington 

actually  collected,  and  the  compensation  provided 
or  estimated  by  this  act  for  such  case.  Any  such 
cause  of  action  assigned  to  the  State  may  be  prose- 
cuted, or  compromised  by  the  department,  in  its 
discretion.  Any  compromise  by  the  workman  of  any 
such  suit,  which  would  leave  a  deficiency  to  be  made 
good  out  of  the  accident  fund,  may  be  made  only 
with  the  written  approval  of  the  department. 

"Any  individual  employer  or  any  member  or  officer 
of  any  corporate  employer  who  shall  be  carried  upon 
the  pay  roll  at  a  salary  or  wage  not  less  than  the  aver- 
age salary  or  wage  named  in  such  pay  roll  and  who 
shall  be  injured,  shall  be  entitled  to  the  benefit  of  this 
act  as  and  under  the  same  circumstances  as  and  sub- 
ject to  the  same  obligations  as  a  workman. 

"Dependent  means  any  of  the  following  named 
relatives  of  a  workman  whose  death  results  from  any 
injury  and  who  leaves  surviving  no  widow,  widower, 
or  child  under  the  age  of  sixteen  years,  viz.:  invalid 
child  over  the  age  of  sixteen  years,  daughter,  be- 
tween sixteen  and  eighteen  years  of  age,  father, 
mother,  grandfather,  grandmother,  step-father,  step- 
mother, grandson,  granddaughter,  step-son,  step- 
daughter, brother,  sister,  half-sister,  half-brother, 
niece,  nephew,  who,  at  th5  time  of  the  accident,  are 
dependent,  in  whole  or  in  part,  for  their  support  upon 
the  earnings  of  the  workman.  Except  where  other- 
wise provided  by  treaty,  aliens,  other  than  father 
or  mother,  not  residing  within  the  United  States  at 
the  time  of  the  accident,  are  not  included. 

"Beneficiary  means  a  husband,  wife,  child  or  de- 
pendent of  a  workman,  in  whom  shall  vest  a  right 
to  receive  payment  under  this  act. 

"Invalid  means  one  who  is  physically  or  mentally 
incapacitated  from  earning. 


168    Bradbury's  workmen's  compensation  law 

Washington 

"The  word  'child/  as  used  in  this  act,  includes 
a  posthumous  child,  a  child  legally  adopted  prior 
to  the  injury,  and  an  illegitimate  child  legitimated 
prior  to  the  injury. 

"The  words  injury  or  injured,  as  used  in  this  act, 
refer  only  to  an  injury  resulting  from  some  fortui- 
tous event  as  distinguished  from  the  contraction  of 
disease." 

"  §  6.  Intentional  injuries — status  of  minors.  If  in- 
jury or  death  results  to  a  workman  from  the  deliber- 
ate intention  of  the  workman  himself  to  produce 
such  injury  or  death,  neither  the  workman  nor  t*he 
widow,  widower,  child  or  dependent  of  the  workman 
shall  receive  any  payment  whatsoever  out  of  the 
accident  fund.  If  injury  or  death  results  to  a  work- 
man from  the  deliberate  intention  of  his  employer 
to  produce  such  injury  or  death,  the  workman,  the 
widow,  widower,  child  or  dependent  of  the  workman 
shall  have  the  privilege  to  take  under  this  act  and 
also  have  cause  of  action  against  the  employer,  as 
if  this  act  had  not  been  enacted,  for  any  excess  of 
damage  over  the  amount  received  or  receivable  under 
this  act. 

"A  minor  working  at  an  age  legally  permitted  under 
the  laws  of  this  State  shall  be  deemed  sui  juris 
for  the  purpose  of  this  act,  and  no  other  person  shall 
have  any  cause  of  action  or  right  to  compensation 
for  an  injury  to  such  minor  workman  except  as  ex- 
pressly provided  in  this  act,  but  in  the  event  of  a 
lump  sum  payment  becoming  due  under  this  act 
to  such  minor  workman,  the  management  of  the  sum 
shall  be  within  the  probate  jurisdiction  of  the  courts 
the  same  as  other  property  of  minors." 

"§  17.  Public  and  contract  work.  Whenever  the 
State,  county  or  any  municipal  corporation  shall  en- 


TO   WHOM   ACT   APPLIES  169 

Washington 

gage  in  any  extra  hazardous  work  in  which  workmen 
are  employed  for  wages,  this  act  shall  be  applicable 
thereto.  The  employer's  payments  into  the  accident 
fund  shall  be  made  from  the  treasury  of  the  State, 
county  or  municipality.  If  said  work  is  being  done 
by  contract,  the  pay  roll  of  the  contractor  and  the 
sub-contractor  shall  be  the  basis  of  computation,  and 
in  the  case  of  contract  work  consuming  less  than  one 
year  in  performance  the  required  payment  into  the  ac- 
cident fund  shall  be  based  upon  the  total  pay  roll. 
The  contractor  and  any  sub-contractor  shall  be  sub- 
ject to  the  provisions  of  the  act,  and  the  State  for 
its  general  fund,  the  county  or  municipal  corporation 
shall  be  entitled  to  collect  from  the  contractor  the  full 
amount  payable  to  the  accident  fund,  and  the  con- 
tractor, in  turn  shall  be  entitled  to  collect  from  the 
sub-contractor  his  proportionate  amount  of  the  pay- 
ment. The  provisions  of  this  section  shall  apply  to  all 
extra  hazardous  work  done  by  contract,  except  that  in 
private  work  the  contractor  shall  be  responsible,  pri- 
marily and  directly,  to  the  accident  fund  for  the  proper 
percentage  of  the  total  pay  roll  of  the  work  and  the 
owner  of  the  property  affected  by  the  contract  shall  be 
surety  for  such  payments.  Whenever  and  so  long 
as,  by  state  law,  city  charter  or  municipal  ordinance, 
provision  is  made  for  municipal  employes  injured  in 
the  course  of  employment,  such  employes  shall  not 
be  entitled  to  the  benefits  of  this  act  and  shall  not 
be  included  in  the  pay  roll  of  the  municipality  under 
this  act. 

"§  18.  Interstate  commerce.  The  provisions  of  this 
act  shall  apply  to  employers  and  workmen  engaged  in 
intrastate  and  also  in  interstate  or  foreign  commerce, 
for  whom  a  rule  of  liability  or  method  of  compensation 
has  been  or  may  be  established  by  the  Congress  of  the 


170    Bradbury's  workmen's  compensation  law 

Wisconsin 

United  States,  only  to  the  extent  that  their  mutual 
connection  with  intrastate  work  may  and  shall  be 
clearly  separable  and  distinguishable  from  interstate 
or  foreign  commerce,  except  that  any  such  employer 
and  any  of  his  workmen  working  only  in  this  State 
may,  with  the  approval  of  the  department,  and  so  far 
as  not  forbidden  by  any  act  of  Congress,  voluntarily 
accept  the  provisions  of  this  act  by  filing  written  ac- 
ceptances with  the  department.  Such  acceptances, 
when  filed  with  and  approved  by  the  department, 
shall  subject  the  acceptors  irrevocably  to  the  pro- 
visions of  this  act  to  all  intents  and  purposes  as  if  they 
had  been  originally  included  in  its  terms.  Payment  of 
premium  shall  be  on  the  basis  of  the  pay  roll  of  the 
workmen  who  accept  as  aforesaid. 

"§  19.  Elective  adoption  of  act.  Any  employer  and 
his  employes  engaged  in  works  not  extra  hazardous 
may,  by  their  joint  election,  filed  with  the  department, 
accept  the  provisions  of  this  act,  and  such  acceptances, 
when  approved  by  the  department,  shall  subject  them 
irrevocably  to  the  provisions  of  this  act  to  all  intents 
and  purposes  as  if  they  had  been  originally  included 
in  its  terms.  Ninety  per  cent  of  the  minimum  rate 
specified  in  section  4  shall  be  applicable  to  such  case 
until  otherwise  provided  by  law." 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-3.  Except  as  regards  employes  working 
in  shops  or  offices  of  a  railroad  company,  who  are 
within  the  provisions  of  subsection  9  of  section  1816 
of  the  statutes,  as  amended  by  chapter  254  of  the 
laws  of  1907,  the  term  'employer'  as  used  in  the  two 
preceding  sections  of  this  act  shall  not  include  any 


TO   WHOM   ACT   APPLIES  171 

Wisconsin 

railroad  company  as  defined  in  subsection  7  of  said  sec- 
tion 1816  as  amended,  said  section  1816  and  amenda- 
tory acts  being  continued  in  force  unaffected,  except 
as  aforesaid,  by  the  preceding  sections  of  this  act. 

The  Compensation  Act  of  Wisconsin  appKes  to  all 
employers  of  labor  who  have  elected  to  come  within 
its  provisions,  except  certain  employes  of  railroads  (who 
are  protected  under  another  statute.  See  §  2394-3, 
above),  casual  employes  and  those  whose  employment 
is  not  in  the  usual  course  of  the  trade,  business,  pro- 
fession, or  occupation  of  the  employer.  See  §  2394-7 
(2)  below,  in  this  chapter. 

"  §  2394-4.  Liability  for  the  compensation  here- 
inafter provided  for,  in  lieu  of  any  other  liability 
whatsoever,  shall  exist  against  an  employer  for  any 
personal  injury  accidentally  sustained  by  his  em- 
ploye, and  for  his  death,  if  the  injury  shall  proximately 
cause  death,  in  those  cases  where  the  following  con- 
ditions of  compensation  concur: 

"1.  Where,  at  the  time  of  the  accident,  both  the 
employer  and  employ^  are  subject  to  the  provisions 
of  this  act  according  to  the  succeeding  sections  hereof. 

"2.  Where,  at  the  time  of  the  accident,  the  em- 
ploy^ is  performing  service  growing  out  of  and  in- 
cidental to  his  employment. 

"3.  Where  the  injury  is  proximately  caused  by 
accident,  and  is  not  so  caused  by  willful  misconduct. 

"And  where  such  conditions  of  compensation  exist 
for  any  personal  injury  or  death,  the  right  to  the  re- 
covery of  such  compensation  pursuant  to  the  pro- 
visions of  this  act,  and  acts  amendatory  thereof,  shall 
be  the  exclusive  remedy  against  the  employer  for  such 


172    Bradbury's  workmen's  compensation  law 

Wisconsin 

injury  or  death;  in  all  other  cases  the  liability  of  the 
employer  shall  be  the  same  as  if  this  and  the  succeed- 
ing sections  of  this  act  had  not  been  passed,  but  shall 
be  subject  to  the  provisions  of  the  preceding  sections 
of  this  act. 

"§2394-5.  The  following  shall  constitute  employ- 
ers subject  to  the  provisions  of  this  act  within  the 
meaning  of  the  preceding  section: 

"  1.  The  State,  and  each  county,  city,  town,  village, 
and  school  district  therein. 

"2.  Every  person,  firm,  and  private  corporation 
(including  any  public  service  corporation),  who  has 
any  person  in  service  under  any  contract  of  hire,  ex- 
press or  implied,  oral  or  written,  and  who,  at  or  prior 
to  the  time  of  the  accident  to  the  employ^  for  which 
compensation  under  this  act  may  be  claimed,  shall,  in 
the  manner  provided  in  the  next  section,  have  elected 
to  become  subject  to  the  provisions  of  this  act,  and 
who  shall  not,  prior  to  such  accident,  have  effected  a 
withdrawal  of  such  election,  in  the  manner  provided 
in  the  next  section. 

"§2394-6.  Such  election  on  the  part  of  the  em- 
ployer shall  be  made  by  filing  with  the  industrial  acci- 
dent board,  hereinafter  provided  for,  a  written  state- 
ment to  the  effect  that  he  accepts  the  provisions  of 
this  act,  the  filing  of  which  statement  shall  operate, 
within  the  meaning  of  section  2394-5  of  this  act,  to 
subject  such  employer  to  the  provisions  of  this  act 
and  all  acts  amendatory  thereof  for  the  term  of  one 
year  from  the  date  of  the  filing  of  such  statement,  and 
thereafter,  without  further  act  on  his  part,  for  suc- 
cessive terms  of  one  year  each,  unless  such  employer 
shall,  at  least  sixty  days  prior  to  the  expiration  of 
such  first  or  any  succeeding  year,  file  in  the  office  of 
said  board  a  notice  in  writing  to  the  effect  that  he 


TO   WHOM   ACT   APPLIES  173 

Wisconsin 

desires  to  withdraw  his  election  to  be  subject  to  the 
provisions  of  the  act. 

"  §  2394-7.  The  term  '  employe '  as  used  in  sec- 
tion 2394-4  of  this  act  shall  be  construed  to  mean: 

"1.  Every  person  in  the  service  of  the  State,  or  of 
any  county,  city,  town,  village,  or  school  district 
therein,  under  any  appointment,  or  contract  of  hire, 
express  or  implied,  oral  or  written,  except  any  official 
of  the  State,  or  of  any  county,  city,  town,  village,  or 
school  district  therein,  provided  that  one,  employed  by 
a  contractor,  who  has  contracted  with  a  county,  city, 
town,  village,  school  district,  or  the  State,  through 
its  representatives,  shall  not  be  considered  an  em- 
ploye of  the  State,  county,  city,  town,  village,  or 
school  district  which  made  the  contract. 

"2.  Every  person  in  the  service  of  another  under 
any  contract  of  hire,  express  or  implied,  oral  or  written, 
including  aliens,  and  also  including  minors  who  are 
legally  permitted  to  work  under  the  laws  of  the  State 
(who,  for  the  purposes  of  the  next  section  of  this  act, 
shall  be  considered  the  same  and  shall  have  the  same 
power  of  contracting  as  adult  employes),  but  not  in- 
cluding any  person  whose  employment  is  but  casual 
or  is  not  in  the  usual  course  of  the  trade,  business, 
profession,  or  occupation  of  his  employer. 

Casual  employe. 

Just  what  is  a  "casual"  employment  has  been  the 
subject  of  much  discussion  and  a  good  deal  of  confusion. 
''Casual"  means  coming  without  regularity.  A  laun- 
dress who  comes  once  a  week  or  at  other  ''regular" 
intervals  is  not  a  casual  employe,  because  she  is  em- 
ployed at  regular  although  infrequent  intervals.  Dew- 
hurst  V.  Mather  (1908),  2  K.  B.  754.    On  the  other  hand, 


174     Bradbury's  workmen's  compensation  law 

Wisconsin 

a  window  cleaner  to  whom  a  job  is  given  now  and  then 
is  a  casual  employe.  Hill  v.  Begg  (1908),  2  K.  B.  802. 
(See  ante,  page  121,  for  a  further  discussion  of  this 
point.) 

The  provision  of  the  British  Compensation  Act  under 
which  the  foregoing  decisions  were  made  provides  as 
follows : 

"'Workman'  does  not  include  *  *  *  a  person  whose 
employment  is  of  a  casual  nature  and  who  is  employed 
otherwise  than  for  the  purpose  of  the  employer's  trade 
or  business."  Workman's  Compensation  Act  1906; 
Act  XIII;  6  Edward  VII,  c.  58.    See  Chapter  XXXVIII. 

"  §  2394-8.  Any  employ^  as  defined  in  subsection  1 
of  the  preceding  section  shall  be  subject  to  the 
provisions  of  this  act  and  of  any  act  amendatory 
thereof.  Any  employe  as  defined  in  subsection  2  of 
the  preceding  section  shall  be  deemed  to  have  ac- 
cepted and  shall,  within  the  meaning  of  section  2394- 
4  of  this  act,  be  subject  to  the  provisions  of  this  act 
and  of  any  act  amendatory  thereof,  if,  at  the  time  of 
the  accident  upon  which  liabiUty  is  claimed: 

"1.  The  employer  charged  with  such  liability  is 
subject  to  the  provisions  of  this  act,  whether  the  em- 
ploy^ has  actual  notice  thereof  or  not;  and 

"2.  Such  employe  shall  not,  at  the  time  of  entering 
into  his  contract  of  hire,  express  or  implied,  with  such 
employer,  have  given  to  his  employer  notice  in  writing 
that  he  elects  not  to  be  subject  to  the  provisions  of 
this  act;  or,  in  the  event  that  such  contract  of  hire  was 
made  in  advance  of  such  employer  becoming  subject 
to  the  provisions  of  the  act,  such  employ^  shall  have 
given  to  his  employer  notice  in  writing  that  he  elects 
to  be  subject  to  such  provisions,  or  without  giving 


TO   WHOM   ACT   APPLIES  175 

Wisconsin 

either  of  such  notices,  shall  have  remained  in  the 
service  of  such  employer  for  thirty  days  after  the  em- 
ployer has  filed  with  said  board  an  election  to  be  sub- 
ject to  the  terms  of  this  act." 

"§2394-29.  The  board  shall  cause  to  be  printed 
and  furnished  free  of  charge  to  any  employer  or  em- 
ploy^ such  blank  forms  as  it  shall  deem  requisite  to 
facihtate  or  promote  the  efficient  administration  of 
this  act;  it  shall  provide  a  proper  record  book  in  which 
shall  be  entered  and  indexed  the  name  of  every  em- 
ployer who  shall  file  a  statement  of  election  under  this 
act,  and  the  date  of  the  filing  thereof,  and  a  separate 
book  in  which  shall  be  entered  and  indexed  the  name 
of  every  employer  who  shall  file  his  notice  of  with- 
drawal of  such  election,  and  the  date  of  the  filing 
thereof;  and  books  in  which  shall  be  recorded  all  orders 
and  awards  made  by  the  board,  and  such  other  books 
or  records  as  it  shall  deem  required  by  the  proper  and 
efiicient  administration  of  this  act;  all  such  records  to 
be  kept  in  the  office  of  the  board.  Upon  the  filing  of  a 
statement  of  election  by  an  employer  to  become  sub- 
ject to  the  provisions  of  this  act,  the  board  shall  forth- 
with cause  notice  of  the  fact  to  be  given  to  his 
employes,  by  posting  such  notice  thereof  in  several 
conspicuous  places  in  the  office,  shop,  or  place  of  busi- 
ness of  the  employer,  or  by  publishing,  or  in  such  other 
manner  as  the  board  shall  deem  most  effective;  and 
the  board  shall  likewise  cause  notice  to  be  given  of  the 
filing  of  any  withdrawal  of  such  election;  but  not- 
withstanding the  failure  to  give,  or  the  insufficiency 
of,  any  such  notice,  knowledge  of  all  filed  statements 
.of  election  and  notices  of  withdrawal  of  election,  and 
of  the  time  of  the  filing  of  the  same,  shall  conclusively 
be  imputed  to  all  employes." 


CHAPTER  III 

LIABILITY  OF  PRINCIPAL  CONTRACTOR  FOR  INJURIES 
TO  WORKMEN  OF  SUBCONTRACTOR 

Page  Page 

Introduction 176     New  Hampshire 185 

California 181     New  Jersey 185 

Illinois 181     Ohio 186 

Kansas 182     Rhode  Island 186 

Massachusetts 183     Washington 186 

Michigan 184     Wisconsin 187 

Nevada 184 

1.  Introduction. 

A  majority  of  the  compensation  acts  of  the  different 
States  contain  provisions  relating  to  the  subject  of  this 
chapter.  Under  certain  circumstances  others  than  the 
direct  employers  of  a  workman  may  be  held  liable  for 
compensation  for  his  injuries.  The  decisions  under  the 
British  Act  containing  somewhat  similar  provisions  will 
be  found  useful. 

By  an  agreement  entered  into  between  the  defendant 
and  one  Lovelace,  the  latter  was  to  keep  an  airship  on 
exhibition  on  the  defendant's  grounds,  and  pay  the 
wages  of  the  turnstile  man  who  was  to  be  a  servant  of 
the  defendant  corporation.  Admission  to  the  inclosure 
to  view  the  airship  was  only  to  be  obtained  by  ticket 
and  the  moneys  collected  daily  by  the  turnstile  man 
were  to  be  paid,  one-half  to  Lovelace,  who  agreed  to 
pay  the  persons  engaged  by  him,  the  defendant  receiv- 
ing the  remainder  of  the  receipts.    For  the  purpose  of 

176 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  177 

Introduction 

carrying  out  the  agreement  Lovelace  engaged  a  lecturer 
whose  duties  were  to  explain  the  various  parts  of  the 
airship  and  the  exploits  of  Lovelace.  After  the  airship 
had  been  on  exhibition  for  some  time  it  exploded  and 
the  lecturer  was  so  severely  burned  that  he  died  as  a 
result  of  the  injuries.  In  a  proceeding  by  the  widow 
of  the  lecturer  for  compensation,  it  was  held  that  the 
lecturer  was  not  a  ''workman"  within  the  meaning  of 
§  13  of  the  Compensation  Act  of  1906;  and  even  as- 
suming that  the  lecturer  was  a  workman,  his  remedy 
was  against  Lovelace  and  not  against  the  defendant. 
Waites  v.  Franco-British  Exhibition  (Incorporated) 
(1909),  2  B.  W.  C.  C.  199. 

Two  men  named  Jones  and  Acocks  determined  to 
open  a  skating  rink.  They  bought  an  existing  iron 
building  and  contracted  with  Howarth  to  remove  it  for 
them  to  its  new  position.  In  the  course  of  the  work,  a 
man  employed  by  Howarth  was  injured  and  claimed 
compensation  from  Jones  and  Acocks,  as  principals, 
within  the  meaning  of  §  4  of  the  Act.  It  was  held  that 
Jones  and  Acocks  were  not  principals  within  the  mean- 
ing of  the  section  mentioned  and  the  application  was 
dismissed.  Skates  v.  Jones  &  Co.  (1910),  3  B.  W.  C.  C. 
460. 

The  deceased  was  a  farm  laborer  who  was  in  the 
habit  of  working  for  different  farmers  at  2s.  6d.  a  day, 
coming  and  going  when  and  as  he  wished.  He  came  to 
work  for  the  respondent  at  hay  harvest  in  June,  1907, 
and  worked  for  him  until  July  4th  of  that  year,  when 
he  worked  for  another  farmer  for  a  week;  after  which 
he  came  back  and  worked  for  the  respondent  until 
October  10th,  1908,  except  on  three  days,  at  different 
times,  when  he  absented  himself  without  notice,  getting 
12 


178    Bradbury's  workmen's  compensation  law 

Introduction 

no  wages  for  the  days  when  he  was  away.  On  the 
morning  of  October  12th,  1908,  the  deceased  came  to 
the  respondent's  house  with  another  laborer  of  the  same 
kind  prepared  to  work,  and  was  told  by  the  respond- 
ent's servant  to  go  to  a  neighboring  farmer,  Andrews, 
who  had  sent  a  message  to  the  respondent  asking  him 
to  lend  him  a  man  to  help  in  threshing,  to  which  the 
respondent  had  answered  that  the  deceased  could  go. 
The  deceased  therefore  went  to  Andrews,  and  while 
threshing  met  with  an  accident  which  caused  his  death. 
It  was  held  that  the  deceased's  employment  was  of  a 
casual  nature,  that  he  was  a  workman  within  the  mean- 
ing of  §  13  of  the  Act,  but  that  there  was  no  contract 
of  service  between  the  workman  and  the  respondent  at 
the  time  of  the  accident,  and  therefore  dependents  were 
not  entitled  to  compensation  from  the  respondent. 
Boswell  V.  Gilbert  (1909),  2  B.  W.  C.  C.  251. 

A  municipal  corporation  being  desirous  of  clearing 
land  of  old  buildings  for  the  purpose  of  extending  a 
market  advertised  for  bids  to  remove  the  buildings  and 
accepted  the  proposition  of  one  Todd  who  offered  to 
remove  the  buildings  and  pay  £15,  provided  he  could 
have  the  bricks  in  the  buildings.  This  offer  was  ac- 
cepted. During  the  progress  of  the  work  a  man  em- 
ployed by  Todd  was  killed.  It  was  held  that  the  widow 
of  the  deceased  could  recover  compensation  from  the 
municipal  corporation  under  §§4  and  13  of  the  Act. 
Mulrooney  v.  Todd  and  Bradford  Corporation  (1908), 
100  L.  T.  99;  2  B.  W.  C.  C.  191. 

Where  C  purchased  some  standing  timber  and  con- 
tracted with  M  to  fell  the  timber  and  M  employed  his 
son  to  help  do  the  Work,  and  the  son  was  injured,  it  was 
held  that  the  son  could  not  recover  compensation  from 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  179 

Introduction 

C  as  the  son  of  M  was  not  a  workman  of  C's  within  the 
meaning  of  §  4  of  the  Act.  Marks  v.  Came  (1908),  100 
L.  T.  950;  2  B.  W.  C.  C.  186. 

The  registered  owner  of  a  steam  tug  chartered  her  to 
another.  Under  the  charter-party  the  owner  was 
bound  to  provide  and  pay  a  crew  of  two  men,  including 
the  deceased,  and  he  alone  had  power  to  dismiss  them. 
The  possession,  control  and  management  of  the  vessel 
under  the  charter-party  belonged  to  the  person  to 
whom  it  was  chartered.  It  was  held  that  the  owner 
and  not  the  charterer  was  the  deceased's  employer, 
within  the  meaning  of  the  Compensation  Act.  Mackin- 
non  V.  Miller  (1909),  46  Scotch  L.  R.  299;  2  B.  W.  C.  C. 
64. 

A  shipowner  contracted  with  Williamson  for  the 
cleaning  of  the  boilers  in  one  of  his  vessels.  Williamson 
engaged  a  number  of  boiler  scalers  to  do  the  work,  and 
one  of  them.  Spiers,  was  injured  while  so  employed. 
Spiers  was  subject  to  the  orders  of  Williamson  in  the 
performance  of  the  work,  a  certain  supervision  over 
him  and  the  other  workmen  being  exercised  by  a  fore- 
man in  the  employment  of  the  shipowner.  Spiers 
received  his  wages  from  Wilhamson,  who  in  turn  re- 
ceived the  money  in  installments  from  the  shipowner  as 
desired  for  payment  of  the  wages.  It  was  held  that 
Spiers  was  not  in  the  employment  of  the  shipowner  and 
therefore  not  entitled  to  compensation  from  him. 
Spiers  v.  Elder slie  Steamship  Co.  (1909),  46  Scotch  L. 
R.  893;  2  B.  W.  C.  C.  205.  The  work  of  boiler  scaling 
on  a  ship  is  not  undertaken  by  the  shipowner  in  the 
course  or  for  the  purposes  of  his  trade  or  business  within 
the  meaning  of  §  4  of  the  Workmen's  Compensation 
Act.    Id. 


180    bbadbury's  workmen's  compensation  law 

Introduction 

' ? ■ 

The  respondents  were  owners  of  a  threshing  machine 
which  they  let  out  on  hire  to  farmers.  They  were 
bound  by  statute  to  have  three  men  to  attend  the 
machine,  two  to  look  after  the  engine  and  a  third  as  a 
road  man.  At  farms  the  road  man  acted  as  assistant  in 
threshing,  being  paid  for  this  by  the  farmer  and  not  by 
the  respondents.  While  engaged  in  the  threshing  the 
applicant,  the  road  man,  was  injured  and  claimed  com- 
pensation from  the  respondents,  who  denied  liability, 
stating  that  the  farmer  was  the  employer.  The  County 
Court  judge  held  the  respondents  were  the  employers. 
On  appeal  it  was  held  that  the  County  Court  judge  had 
decided  a  question  of  fact,  and  that  there  was  evidence 
to  support  his  decision.  Reed  v.  Smith,  Wilkinson  <fe 
Co.  (1910),  3  B.  W.  C.  C.  223. 

A  farmer  arranged  with  David  Walsh  for  the  services 
of  a  threshing  machine,  which  was  owned  by  David 
Walsh's  father,  it  being  understood  that  25  shillings 
was  the  sum  to  be  paid  for  the  use  of  the  machine,  and 
from  this  the  sum  of  20  shillings  should  go  to  the  father 
of  David  Walsh.  In  the  course  of  the  work  David 
Walsh's  hand  got  caught  in  the  machine  and  had  to  be 
amputated.  It  was  held  that  the  farmer  was  not 
liable  to  David  Walsh  under  §  4  of  the  Act.  Walsh  v. 
Hayes  (1909),  43  Irish  L.  T.  114;  2  B.  W.  C.  C.  202. 

A  workman  was  drowned  while  mooring  a  ship  be- 
longing to  the  respondents.  He  was  paid  by  a  stevedore 
who  worked  for  the  respondents  and  other  firms.  The 
respondents  contended  that  the  workman  was  employed 
by  the  stevedore  and  not  by  them.  The  stevedore  gave 
evidence  that  the  money  was  paid  through  him  merely 
for  the  convenience  of  the  respondents.  The  County 
Court  judge  held  that  the  man  was  employed  directly 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  181 

Illinois 

by  the  respondents  and  not  by  the  stevedore.  On  ap- 
peal it  was  held  that  this  was  a  question  of  fact  and  the 
court  could  not  interfere,  as  there  was  some  evidence  to 
support  the  decision.  Pollard  v.  Goole  and  Hull  Steam 
Touring  Co.  (1910),  3  B.  W.  C.  C.  360. 

CALIFORNIA 
(L.  1911,  c.  399) 

The  California  Act  has  no  provision  relating  to  this 
subject. 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  20.  Any  person,  firm  or  corporation  who  under- 
takes to  do  or  contracts  with  others  to  do,  or  have  done 
for  him,  them  or  it,  any  work  embraced  in  section  2 
of  this  Act,  requiring  such  dangerous  employment  of 
employes  in,  or  about  premises  where  he,  they  or  it,  as 
principal  or  principals,  contract  to  do  such  work  or 
any  part  thereof,  and  does  not  require  that  the  com- 
pensation provided  for  in  this  Act  shall  be  insured  to 
the  employ^  or  beneficiary  by  any  such  person,  firm  or 
corporation  undertaking  to  do  such  work  and  any 
such  person,  firm  or  corporation  who  creates  or  carries 
into  operation  any  fraudulent  scheme,  artifice  or  device 
to  enable  him,  them  or  it  to  execute  such  work  without 
such  person,  firm  or  corporation  being  responsible  to 
the  employ^  or  beneficiaries  entitled  to  such  compen- 
sation under  the  provisions  of  this  Act,  such  person, 
firm,  or  corporation  shall  be  included  in  the  term 
'employer'  and  with  the  immediate  employer  shall 
be  jointly  and  severally  liable  to  pay  the  compensation 
herein  provided  for,  and  be  subject  to  all  the  provi- 
sions of  this  Act." 


18^    Bradbury's  workmen's  compensation  law 

Kansas 

KANSAS 

(L.  1911,  c.  218) 

"  §  4.  Subcontracting,  (a)  Where  any  person  (in  this 
section  referred  to  as  principal)  undertakes  to  exe- 
cute any  work  which  is  a  part  of  his  trade  or  business 
or  which  he  has  contracted  to  perform  and  contracts 
with  any  other  person  (in  this  section  referred  to  as 
the  contractor)  for  the  execution  by  or  under  the  con- 
tractor of  the  whole  or  any  part  of  the  work  under- 
taken by  the  principal,  the  principal  shall  be  liable  to 
pay  to  any  workman  employed  in  the  execution  of  the 
work  any  compensation  under  this  act  which  he  would 
have  been  liable  to  pay  if  that  workman  had  been 
immediately  employed  by  him;  and  where  compensa- 
tion is  claimed  from  or  proceedings  are  taken  against 
the  principal,  then,  in  the  application  of  this  act, 
references  to  the  principal  shall  be  substituted  for 
references  to  the  employer,  except  that  the  amount 
of  compensation  shall  be  calculated  with  reference  to 
the  earnings  of  the  workman  under  the  employer  by 
whom  he  is  immediately  employed.  (6)  Where  the 
principal  is  liable  to  pay  compensation  under  this 
section,  he  shall  be  entitled  to  indemnity  from  any 
person  who  would  have  been  liable  to  pay  compensa- 
tion to  the  workman  independently  of  this  section, 
and  shall  have  a  cause  of  action  therefor,  (c)  Nothing 
in  this  section  shall  be  construed  as  preventing  a 
workman  from  recovering  compensation  under  this 
act  from  the  contractor  instead  of  the  principal. 
(d)  This  section  shall  not  apply  to  any  case  where  the 
accident  occurred  elsewhere  than  on  or  in,  or  about  the 
premises  on  which  the  principal  has  undertaken  to 
execute  work  or  which  are  otherwise  under  his  control 
or  management,  or  on,  in,  or  about  the  execution  of 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  183 

Massachusetts 

such  work  under  his  control  or  management,  (e)  A 
principal  contractor,  when  sued  by  a  workman  of  a 
subcontractor,  shall  have  the  right  to  implead  the 
subcontractor.  (/)  The  principal  contractor  who  pays 
compensation  voluntarily  to  a  workman  of  a  subcon- 
tractor shall  have  the  right  to  recover  over  against  the 
subcontractor. 

"  §  5.  Remedies  both  against  employer  and  stranger. 
Where  the  injury  for  which  compensation  is  payable 
under  this  act  was  caused  under  circumstances  creat- 
ing a  legal  liability  against  some  person  other  than  the 
employer  to  pay  damages  in  respect  thereof,  (a)  The 
workman  may  take  proceedings  against  that  person 
to  recover  damages  and  against  any  person  liable  to 
pay  compensation  under  this  act  for  such  compensa- 
tion, but  shall  not  be  entitled  to  recover  both  damages 
and  compensation ;  and  (6)  if  the  workman  has  recov- 
ered compensation  under  this  act,  the  person  by  whom 
the  compensation  was  paid,  or  any  person  who  has 
been  called  on  to  indemnify  him  under  the  section  of 
this  act  relating  to  subcontracting,  shall  be  entitled 
to  indemnity  from  the  person  so  liable  to  pay  damages 
as  aforesaid,  and  shall  be  subrogated  to  the  rights  of 
the  workman  to  recover  damages  therefor. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  III,  §  17.  If  a  subscriber  enters  into  a  con- 
tract, written  or  oral,  with  an  independent  contractor 
to  do  such  subscriber's  work,  or  if  such  contractor 
enters  into  a  contract  with  a  subcontractor  to  do  all  or 
any  part  of  the  work  comprised  in  such  contract  with 
the  subscriber,  and  the  association  would,  if  such  work 
were  executed  by  employes  immediately  employed  by 
the  subscriber,  be  liable  to  pay  compensation  under 


184    Bradbury's  workmen's  compensation  law 

Nevada 

this  act  to  those  employes,  the  association  shall  pay 
to  such  employes  any  compensation  which  would  be 
payable  to  them  under  this  act  if  the  independent 
or  subcontractor  were  subscribers.  The  association, 
however,  shall  be  entitled  to  recover  indemnity  from 
any  other  person  who  would  have  been  liable  to  such 
employes  independently  of  this  section,  and  if  the 
association  has  paid  compensation  under  the  terms 
of  this  section,  it  may  enforce  in  the  name  of  the  em- 
ploye, or  in  its  own  name  and  for  the  benefit  of  the 
association,  the  liability  of  such  other  person.  This 
section  shall  not  apply  to  any  contract  of  an  inde- 
pendent or  subcontractor  which  is  merely  ancillary 
and  incidental  to,  and  is  no  part  of  or  process  in,  the 
trade  or  business  carried  on  by  the  subscriber,  nor  to 
any  case  where  the  injury  occurred  elsewhere  than  on, 
in,  or  about  the  premises  on  which  the  contractor  has 
undertaken  to  execute  the  work  for  the  subscriber 
or  which  are  under  the  control  or  management  of  the 
subscriber." 

MICHIGAN 

(L.  1912,  c.  000) 

The  Michigan  Act  contains  no  provision  on  this 
subject. 

NEVADA 

(L.  1911,  c.  183) 

"§  10.  If  any  employer  who  shall  be  the  principal, 
enters  into  a  contract  with  an  independent  contractor 
to  do  part  of  such  employer's  work,  or  if  such  con- 
tractor enters  into  a  contract  with  a  subcontractor  to 
do  all  or  any  part  of  the  work  comprised  in  such  con- 
tractor's contract  with  the  employer,  the  said  principal 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  185 

New  Jersey 

shall  be  liable  to  pay  to  any  workman  employed  in  the 
execution  of  the  work,  any  compensation  under  this 
act,  which  he  would  have  been  liable  to  pay  if  that 
workman  had  been  immediately  employed  by  him; 
and  where  compensation  is  claimed  from  the  principal, 
then  reference  to  the  principal  shall  be  substituted  for 
reference  to  the  employer,  except  the  amount  of  com- 
pensation shall  be  calculated  with  reference  to  the  earn- 
ings of  the  workman  under  the  contractor  or  employer 
by  whom  he  is  immediately  employed.  Where  such 
principal  is  liable  to  pay  compensation  he  shall  be 
entitled  to  be  indemnified  by  any  person  who  would 
have  been  liable  to  pay  compensation  to  the  workman 
independently  of  this  section.  Nothing  in  this  section 
shall  be  construed  as  preventing  a  workman  from 
recovering  compensation  under  this  act,  from  the 
contractor  or  subcontractor,  instead  of  the  principal; 
nor  shall  this  section  apply  in  any  case  where  the  acci- 
dent shall  occur  elsewhere  than  on  or  in  or  about  the 
premises  on  which  the  principal  has  undertaken  to 
execute  the  work  or  which  are  otherwise  under  his 
control  or  management." 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

The  New  Hampshire  Act  contains  no  provisions  on 
this  subject. 

NEW  JERSEY 
(L.  1911,  c.  95) 

"§I-3.  Contract  not  to  bar  liability.  If  an  em- 
ployer enters  into  a  contract,  written  or  verbal,  with 
an  independent  contractor  to  do  part  of  such  em- 
ployer's work,  or  if  such  contractor  enters  into  a  con- 
tract, written  or  verbal,  with  a  subcontractor  to  do 


186     Bradbury's  workmen's  compensation  law 

Washington 

all  or  any  part  of  such  work  comprised  in  such  con- 
tractor's contract  with  the  employer,  such  contract  or 
subcontract  shall  not  bar  the  liability  of  the  employer 
under  this  act  for  injury  caused  to  an  employ 6  of  such 
contractor  or  subcontractor  by  any  defect  in  the  con- 
dition of  the  ways,  works,  machinery  or  plant  if  the 
defect  arose  or  had  not  been  discovered  and  remedied 
through  the  negligence  of  the  employer  or  some  one 
entrusted  by  him  with  the  duty  of  seeing  that  they 
were  in  proper  condition.  This  paragraph  shall  apply 
only  to  actions  arising  under  section  one." 

The  foregoing  paragraph  does  not  apply  to  compen- 
sation cases,  but  only  to  common-law  actions  under 
§  I  of  the  Act.  There  is  no  provision  in  the  New  Jer- 
sey Act  that  contractors  shall  be  liable  *for  compen- 
sation to  the  employes  of  subcontractors. 

OHIO 

(L.  1911,  c.  000) 

There  is  no  provision  in  the  Ohio  Act  on  the  subject 
of  this  chapter. 

RHODE  ISLAND 
(L.  1912,  c.  000) 

There  is  no  provision  on  this  subject  in  the  Rhode 
Island  Act. 

WASHINGTON 

'  (L.  1911,  c.  74) 

For  liability  of  contractors  for  payments  due  by 
subcontractors  on  pubUc  works,  see  §  17,  reprinted  in 
Chapter  II,  ante,  page  168. 


LIABILITY   OF   PRINCIPAL   CONTRACTOR  187 

Wisconsin 

WISCONSIN 

(L.  1911,  c.  50) 

There  is  no  provision  in  the  Wisconsin  Act  making 
principal  contractors  liable  to  pay  compensation  to 
employes  of  subcontractors. 


CHAPTER  IV 

CONTRACTS  EXEMPTING  EMPLOYERS  FROM  OPERA- 
TION OF  ACT 

Page  Page 

Introduction 188     New  Hampshire 191 

California 190     New  Jersey 191 

Illinois 190     Ohio 192 

Kansas 190     Rhode  Island 192 

Massachusetts 191     Washington 192 

Michigan 191     Wisconsin 192 

Nevada 191 

1.  Introduction. 

The  provisions  of  the  various  acts  that  no  contract 
exempting  the  employer  from  the  terms  thereof  are 
somewhat  anomalous,  especially  in  regard  to  those 
statutes  in  which  it  is  provided  that  silence  on  the  part 
of  the  employer  and  the  employ^,  raises  a  presumption 
that  they  have  agreed  in  the  contract  of  service  to  accept 
the  compensation  principle.  In  considering  the  power  to 
annul  the  statutes  by  contract  the  intention  of  the 
legislature  in  each  instance  should  be  kept  in  mind 
constantly.  The  lawmaking  bodies  intended  to  compel 
employers  to  accept  compensation  by  depriving  them 
of  their  common-law  defenses  if  they  failed  to  do  so. 
They  also  intended  to  compel  employes  to  adopt  com- 
pensation by  enacting  that  the  employer's  common-law 
defenses  should  be  restored  as  to  all  such  employes  as 
refuse  to  adopt  the  compensation  principle.^  Naturally 

'  Not  all  of  the  compensation  acts  contain  this  penalty  so  far 
as  the  employes  are  concerned.    But  as  a  general  rule  they  do  so. 

188 


CONTRACTS   EXEMPTING   EMPLOYERS  189 

Introduction 

this  plan  of  coercion  was  adopted  to  overcome  the 
constitutional  difficulties  in  the  way  of  enacting  a 
compulsory  compensation  law.  So  the  legislatures  said 
to  the  employers  and  employes  alike:  You  may  agree 
(impliedly)  with  each  other  not  to  adopt  the  com- 
pensation doctrine,  but  if  you  do,  certain  penalties  will 
be  inflicted.  If  the  employer  forces  the  agreement, 
by  refusing  to  accept  compensation,  his  common-law 
defenses  shall  be  taken  away.  If,  on  the  other  hand, 
the  employ^  forces  the  implied  agreement  by  refusing 
to  accept  compensation  when  his  employer  has  already 
indicated  his  intention  of  embracing  that  doctrine  then 
the  employer  of  such  employe  shall  have  restored  to 
him  his  common-law  defenses.  The  whole  subject,  as 
it  is  worked  out  in  this  series  of  implied  agreements, 
made  necessary  by  the  constitutional  difficulties  in  the 
way  of  an  obligatory  compensation  law,  has  produced 
a  condition  which  is  both  anomalous  and  confusing. 

Under  the  British  Act  it  is  held  that  an  agreement 
with  an  employ^  who  had  been  injured,  containing 
terms  different  from  those  specified  in  the  Act,  will  not 
be  upheld.  British  &  South  American  Steam  Navigation 
Co.  V.  Neil  (1910),  3  B.  W.  C.  C.  413. 

The  term  ''contracting  out"  is  frequently  heard  in 
some  quarters  in  connection  with  compensation  acts. 
It  has  a  restricted  meaning,  however,  and  does  not  in- 
clude the  right  generally  to  annul  the  Compensation 
Act  by  contract  between  employer  and  employe.  The 
term  merely  refers  to  the  right  given  under  the  statute 
of  adopting  some  alternative  scheme  of  compensation 
which  will,  in  effect,  be  the  same  as  that  provided 
under  the  Act.  In  other  words,  the  employer  himself 
under  certain  conditions,  or  a  number  of  employers 


190    Bradbury's  workmen's  compensation  law 

Kansas 

co-operating  can  provide  a  method  of  compensating  his 
or  their  employes  on  a  plan  which  may  differ  in  detail 
from  that  provided  in  the  statute  but  which  must  be 
the  same  in  principle.  Such  plans  must  invariably  have 
the  approval  of  certain  public  officials  before  they  be- 
come effective.  Thus  a  scheme  was  certified  under  the 
Workman's  Compensation  Act  of  1897  and  within  six 
months  allowed  for  recertification  under  the  Act  of 
1906,  an  infant  who  had  contracted  out  of  the  Act  met 
with  an  accident.  The  scale  of  compensation  was  not 
beneficial  to  the  infant.  It  was  held  that  the  infant  was 
not  bound  by  the  contract.  Morter  v.  Great  Eastern  Ry, 
Co.  (1908),  2  B.  W.  C.  C.  480. 

CALIFORNIA 

(L.  1911,  c.  399) 

No  contract,  rule  or  regulation  shall  exempt  the  em- 
ployer from  the  provisions  abolishing  the  common-law 
defenses  in  actions  founded  on  negUgence.  §  2,  Chap- 
ter I,  ante,  page  9. 

ILLINOIS 

(L.  1911,  c.  000) 
"  §  13.  No  employe  or  beneficiary  shall  have  power 
to  waive  any  of  the  provisions  of  this  Act  in  regard  to 
the  amount  of  compensation  which  may  be  payable 
to  such  employ^  or  beneficiary  hereunder." 

j  KANSAS 

(L.  1911,  c.  218) 

There  is  no  provision  in  the  Kansas  Act  on  this 
subject. 


CONTRACTS   EXEMPTING   EMPLOYERS  191 

New  Jersey 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  20.  No  agreement  by  an  employ^  to 
waive  his  rights  to  compensation  under  this  act  shall 
be  valid." 

MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §20.  No  agreement  by  an  employ^  to 
waive  his  rights  to  compensation  under  this  act  shall 
be  valid." 

NEVADA 

(L.  1911,  c.  183) 

The  employer  cannot  exempt  himself  from  the 
section  of  the  statute  abolishing  common-law  de- 
fenses.   §  1.    See  Chapter  II,  ante,  page  150. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

The  New  Hampshire  Act  contains  no  provision  on 
this  subject. 

NEW  JERSEY 

(L.  1911,  c.  95) 

Under  the  New  Jersey  Act  the  employer  and  em- 
ploy6  are  permitted  to  annul  the  Compensation  Act 
as  to  them  by  contract  or  notice,  see  Chapter  II,  ante, 
page  157,  but  of  course  subject  to  the  penalties  noted 
in  the  introduction  to  this  chapter. 


192     Bradbury's  workmen's  compensation  law 

Wisconsin 


OHIO 

(L.  1911,  c.  000) 

There  is  no  provision  in  the  Ohio  Action  the  subject 
of  this  chapter. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  22.  No  waiver  of  rights.  No  agreement 
by  an  employer,  except  as  provided  in  Article  IV,  to 
waive  his  rights  to  compensation  under  this  act  shall 
be  valid." 

Article  IV  relates  to  alternative  schemes  which  must 
be  approved  by  the  Superior  Court.  See  Chapter 
XXVII. 

WASHINGTON 

(L.  1911,  c.  74) 

"§  11.  Nonwaiver  of  act  by  contract.  "No  employer 
or  workman  shall  exempt  himself  from  the  burden 
or  waive  the  benefits  of  this  act  by  any  contract, 
agreement,  rule  or  regulation,  and  any  such  contract, 
agreement,  rule  or  regulation  shall  be  pro  tanto  void." 

WISCONSIN 

(L.  1911,  c.  50) 

The  employer  cannot  by  contract  relieve  himself 
from  the  provision  abolishing  the  common-law  de- 
fenses.   §  2394-2.    See  Chapter  I,  ante,  page  37. 


CHAPTER  V 

TIME    WITHIN   WHICH    NO    COMPENSATION    IS   AL- 
LOWED, EXCEPT  MEDICAL  AID 

Page  Page 

California 193     New  Hampshire 194 

Illinois 193     New  Jersey 195 

Kansas 193     Ohio 195 

Massachusetts 194     Rhode  Island 195 

Michigan 194     Washington 196 

Nevada 194     Wisconsin 196 

CALIFORNIA 

(L.  1911,  c.  399) 

Not  until  the  eighth  day  after  the  injury.  §  8, 
subd.  2.    See  Chapter  IX,  post,  page  253. 

ILLINOIS 

(L.  1911,  c.  000) 

No  compensation  is  allowed  during  first  six  working 
days  of  disability.  Compensation  begins  on  the  eighth 
day.    §  5,  subd.  b.    See  Chapter  IX,  post,  page  256. 

KANSAS 

(L.  1911,  c.  218) 

"The  employer  shall  not  be  liable  under  this  act 
in  respect  of  any  injury  which  does  not  disable  the 
workman  for  the  period  of  at  least  two  weeks  from 
earning  full  wages  at  the  work  at  which  he  is  em- 
ployed." §  1  (a). 
13  193 


194    Bradbury's  workmen's  compensation  law 

New  Hampshire 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  4.  No  compensation  shall  be  paid  under 
this  act  for  any  injury  which  does  not  incapacitate 
the  employe  for  a  period  of  at  least  two  weeks  from 
earning  full  wages,  but  if  incapacity  extends  beyond 
the  period  of  two  weeks,  compensation  shall  begin  on 
the  fifteenth  day  after  the  injury." 

MICHIGAN 

(L.  1912,  c.  000) . 

"Part  II,  §  3.  No  compensation  shall  be  paid  under 
this  act  for  any  injury  which  does  not  incapacitate  the 
employe  for  a  period  of  at  least  two  weeks  from  earning 
full  wages,  but  if  incapacity  extends  beyond  the  period 
of  two  weeks,  compensation  shall  begin  on  the  fifteenth 
day  after  the  injury:  Provided,  However,  That  if 
such  disability  continues  for  eight  weeks  or  longer, 
such  compensation  shall  be  computed  from  the  date 
of  the  injury." 

NEVADA 

(L.  1911,  0.  183) 

No  compensation  allowed  for  first  ten  days.     §  1. 
See  Chapter  II,  ante,  page  150. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"  §  3.  *  *  *  the  employer  shall  not  be  liable  in 
respect  of  any  injury  which  does  not  disable  the  work- 
man for  a  period  of  at  least  two  weeks  from  earn- 
ing full  wages  at  the  work  at  which  he  was  em- 
ployed- *  *  *" 


TIME   WITHIN   WHICH   NO    COMPENSATION   ALLOWED    195 
Rhode  Island 

Compensation  commences  at  the  end  of  the  second 
week.    §  6  (2).    See  Chapter  IX,  post,  page  264. 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§II,  13.  No  compensation  first  two  weeks.  No 
compensation  shall  be  allowed  for  the  first  two  weeks 
after  the  injury  received,  except  as  provided  by  para- 
graph fourteen,^  nor  in  any  case  unless  the  employer 
has  actual  knowledge  of  the  injury  or  is  notified  thereof 
within  the  period  specified  in  paragraph  fifteen."  ^ 

OHIO  » 

(L.  1911,  c.  000) 

"  §  25.  No  benefit  shall  be  allowed  for  the  first 
week  after  the  injury  is  received,  except  the  disburse- 
ment provided  for  in  the  next  two  preceding  sections."^ 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  4.  When  compensation  begins.  No  com- 
pensation except  as  provided  by  section  12  of  this 
Article  shall  be  paid  under  this  act  for  any  injury 
which  does  not  incapacitate  the  employe  for  a  period 
of  at  least  two  weeks  from  earning  full  wages,  but,  if 

'  Paragraph  fourteen  provides  for  medical  and  hospital  services 
and  medicines  for  first  two  weeks  not  exceeding  one  hundred  dollars 
in  value.    See  Chapter  VI,  post,  page  199. 

2  Unless  the  employer  has  actual  notice  of  the  accident  notice 
must  be  given  within  thirty  days.    See  Chapter  XXI,  -post,  page  371. 

» The  two  preceding  sections  (23  and  24)  relate  to  first  aid  medical 
relief  (see  Chapter  VI,  -post,  page  200)  and  funeral  expenses.  (See 
Chapter  VII,  post,  page  204.) 


196    Bradbury's  workmen's  compensation  law 

Wisconsin 

such  incapacity  extends  beyond  the  period  of  two 
weeks,  compensation  shall  begin  on  the  fifteenth  day 
after  the  injury." 

WASHINGTON 

(L.  1911,  0.  74) 

The  compensation  begins  immediately  after  the  in- 
jury. 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9  (2).  If  the  accident  causes  disability, 
an  indemnitj'^  which  shall  be  payable  as  wages  on 
the  eighth  day  after  the  injured  employe  leaves  work 
as  the  result  of  the  injury,  and  weekly  thereafter, 
which  weekly  indemnity  shall  be  as  follows,"  etc 


CHAPTER  VI 

MEDICAL  ATTENTION 

Page  Page 

California 197  New  Hampshire 199 

Illinois 197  New  Jersey 199 

Kansas 198  Ohio 200 

Massachusetts 198  Rhode  Island 200 

Michigan 199  Washington 200 

Nevada 199  Wisconsin 200 

CALIFORNIA 

(L.  1911,  c.  399) 

"§8.  Where  liability  for  compensation  under  this 
Act  exists  the  same  shall  be  as  provided  in  the  fol- 
*  lowing  schedule: 

"(1)  Such  medical  and  surgical  treatment,  medi- 
cines, medical  and  surgical  supplies,  crutches,  and 
apparatus,  as  may  be  reasonably  required  at  the  time 
of  the  injury  and  thereafter  during  the  disability, 
but  not  exceeding  ninety  days,  to  cure  and  relieve 
from  the  effects  of  the  injury,  the  same  to  be  provided 
by  the  employer,  and  in  case  of  his  neglect  or  refusal 
seasonably  to  do  so,  the  employer  to  be  liable  for  the 
reasonable  expense  incurred  by  or  on  behalf  of  the 
employ^  in  providing  the  same;  provided,  however, 
that  the  total  liability  under  this  subdivision  shall  not 
exceed  the  sum  of  $100.00." 

ILLINOIS 

(L.  1911,  c.  000) 

"§  5.  The  amount  of  compensation  which  the  em- 
ployer who  accepts  the  provisions  of  this  Act  shall 
197 


198    Bradbury's  workmen's  compensation  law 

Massachusetts 

provide  and  pay  for  injury  to  the  employ 6  resulting 
in  disability  shall  be: 

"a.  Necessary  first  aid,  medical,  surgical,  and 
hospital  services,  also  medicine  and  hospital  services 
for  a  period  not  longer  than  eight  weeks,  not  to  ex- 
ceed, however,  the  amount  of  two  hundred  dollars, 
also  necessary  services  of  a  physician  or  surgeon  dur- 
ing such  period  of  disability,  unless  such  employ6 
elects  to  secure  his  own  physician  or  surgeon." 

Whether  medical  attention  under  the  above  section 
is  limited  to  two  hundred  dollars  in  amount  is  doubtful. 
The  last  part  of  the  section  beginning  with  the  word 
"also"  seems  to  indicate  that  medical  attention  must 
be  supplied  during  the  entire  time  of  the  disability. 

KANSAS 

(L.  1911,  c.  218) 

In  case  of  the  death  of  the  workman  without  leav- 
ing any  dependents  the  employer  must  pay  "the  reason- 
able expenses  of  his  medical  attendance  and  burial, 
not  exceeding  one  hundred  dollars."     §  11  (a)  (3). 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  5.  During  the  first  two  weeks  after 
the  injury,  the  association  shall  furnish  reasonable 
medicine  and  hospital  services,  and  medicines  when 
they  are  needed." 

If  the  injured  workman  dies  without  dependents 
the  association  shall  pay  the  reasonable  expense  of  the 
last  sickness  and  burial,  which  shall  not  exceed  two 


MEDICAL   ATTENTION  199 

New  Jersey 

hundred    dollars.     Part    II,  §  8.     See    Chapter  VII, 
post,  page  203. 

MICfflGAN 

(L.  1912,  c.  000) 

"Part  II,  §  4.  During  the  first  three  weeks  after  the 
injury  the  employer  shall  furnish,  or  cause  to  be  fur- 
nished, reasonable  medical  and  hospital  services  and 
medicines  when  they  are  needed." 

NEVADA 

(L.  1911,  c.  183) 

Medical  expenses  in  case  of  death.  See  Chapter  VII, 
post,  page  203. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

In  case  of  death  without  leaving  dependents  medical 
attendance  and  funeral  expenses  not  to  exceed  one 
hundred  dollars.  §  6  (1)  (c).  See  Chapter  VIII,  post, 
page  222. 

NEW  JERSEY 

(L.  1911,  c.  95) 

Expenses  of  the  last  sickness  and  burial  not  exceed- 
ing $200,  where  the  injury  causes  death  and  there  are 
no  dependents,  must  be  paid  by  the  employer.  §  II, 
subd.  12  (2).    See  Chapter  VIII,  post,  page  223. 

"§II,  14.  Medical  and  hospital  services  supplied 
first  two  weeks.  During  the  first  two  weeks  after 
the  injury  the  employer  shall  furnish  reasonable 
medical  and  hospital  services  and  medicines,  as  and 


200    Bradbury's  workmen's  compensation  law 

Wisconsin 

when  needed,  not  to  exceed  one  hundred  dollars  in 
value,  unless  the  employ^  refuses  to  allow  them  to  be 
furnished  by  the  employer." 

OHIO 

(L.  1911,  c.  000) 

"  §  23.  Disbursements  for  first  aid.  The  board 
shall  disburse  and  pay  from  the  fund,  for  such  injury, 
to  such  employes,  such  amounts  for  medical,  nurse 
and  hospital  services  and  medicines,  as  it  may  deem 
proper,  not,  however,  in  any  case,  to  exceed  the  sum 
of  two  hundred  dollars,  in  addition  to  such  award 
to  such  employ^." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  5.  Medical  aid.  During  the  first  two 
weeks  after  the  injury  the  employer  shall  furnish 
reasonable  medical  and  hospital  services,  and  med- 
icines when  they  are  needed,  the  amount  of  the  charge 
for  such  services  to  be  fixed,  in  case  of  the  failure  of 
the  employer  and  employ^  to  agree,  by  the  superior 
court." 

WASHINGTON 

(L.  1911,  c.  74) 

There  is  no  provision  for  medical  attendance  under 
the  Washington  Act. 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9.  Where  Hability  for  compensation  under 
this  Act  exists,  the  same  shall  be  as  provided  in  the 
following  schedule: 


MEDICAL   ATTENTION  201 

Wisconsin 

"(1),  Such  medical  and  surgical  treatment,  medi- 
cines, medical  and  surgical  supplies,  crutches,  and 
apparatus,  as  may  be  reasonably  required  at  the  time 
of  the  injury  and  thereafter  during  the  disability, 
but  not  exceeding  ninety  days,  to  cure  and  relieve 
from  the  effects  of  the  injury,  the  same  to  be  provided 
by  the  employer;  and  in  case  of  his  neglect  or  refusal 
seasonably  to  do  so  the  employer  to  be  liable  for  the 
reasonable  expense  incurred  by  or  on  behalf  of  the 
employe  in  providing  the  same." 


CHAPTER  VII 

FUNERAL  EXPENSES 

Page  Page 

California 202  New  Hampshire 203 

Illinois 202  New  Jersey.  ...  '. 204 

Kansas 202  Ohio 204' 

Massachusetts 203  Rhode  Island 204 

Michigan 203  Washington 204 

Nevada 203  Wisconsin 205 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  8  (3)  (d)  If  the  deceased  employ 6  leaves  no  per- 
son dependent  upon  him  for  support,  and  the  accident 
approximately  causes  death,  the  death  benefit  shall 
consist  of  the  reasonable  expenses  of  his  burial  not 
exceeding  $100." 

ILLINOIS 

(L.  1911,  c.  000) 

If  employ^  dies  without  dependents  the  employer 
must  pay  funeral  expenses  not  exceeding  $150.  See 
§  4,  c,  Chapter  VIII,  post,  page  214. 

KANSAS 

(L.  1911,  c.  218) 

If  the  deceased  workman  leaves  no  dependents 
the  employer  must  pay  ''the  reasonable  expenses  of  his 
medical  attendance  and  burial,  not  exceeding  one 
hundred  dollars."    §  11  (a)  (3). 

202 


FUNERAL   EXPENSES  203 

New  Hampshire 


MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §8.  If  the  employ^  leaves  no  depend- 
ents, the  association  shall  pay  the  reasonable  expense 
of  his  last  sickness  and  burial,  which  shall  not  exceed 
two  hundred  dollars." 

MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §  8.  If  the  employ^  leaves  no  dependents 
the  employer  shall  pay,  or  cause  to  be  paid  as  herein- 
after provided,  the  reasonable  expense  of  his  last 
sickness  and  burying,  which  shall  not  exceed  two 
hundred  dollars." 

NEVADA 

(L.  1911,  c.  183) 

"Whatever  sum  is  payable  under  this  section  (§  5, 
see  Chapter  VIII,  post,  page  221)  in  case  of  death 
of  the  injured  workman  shall  be  paid  to  his  legal 
representatives  for  the  benefit  of  such  dependents, 
and  if  he  leaves  no  such  dependents,  then  to  the  pub- 
lic administrator,  for  the  benefit  of  the  person  or 
persons  to  whom  the  expenses  of  medical  attendance 
and  burial  are  due."     §  5,  last  paragraph. 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

In  case  of  death  without  leaving  dependents  medi- 
cal attention  and  funeral  expenses  not  exceeding  one 
hundred  dollars.  §  6  (1)  (c).  See  Chapter  VIII,  post, 
page  222. 


204     Bradbury's  workmen's  compensation  law 

Washington 

NEW  JERSEY 

(L.  1911,  c.  95) 

Where  there  are  no  dependents,  the  expenses  of  the 
last  sickness  and  burial,  not  exceeding  $200  must  be 
paid  by  the  employer.  §  2,  subd.  12  (2).  See  Chap- 
ter VIII,  post,  page  223. 


OHIO 

(L.  1911,  c.  000) 

"§24,  Funeral  expenses.  In  case  death  ensues 
from  the  injury  reasonable  funeral  expenses,  not  to 
exceed  one  hundred  and  fifty  dollars,  shall  be  paid 
from  the  fund,  in  addition  to  such  award  to  such 
employ^." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

'Art.  II,  §9.  Funeral  expenses.  If  the  employ^ 
dies  as  a  result  of  the  injury  leaving  no  dependents  at 
the  time  of  the  injury,  the  employer  shall  pay,  in 
addition  to  any  compensation  provided  for  in  this  act 
the  reasonable  expense  of  his  last  sickness  and  burial, 
which  shall  not  exceed  two  hundred  dollars." 


WASHINGTON 

*  (L.  1911,  c.  74) 

Expenses  of  burial,  not  to  exceed  $75,  shall  be  paid 
in  all  cases  of  death.  §  5  (a).  See  Chapter  VIII, 
post,  page  227. 


FUNERAL   EXPENSES  205 


Wisconsin 


WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9  (3)  (d).  If  the  deceased  employ^  leaves 
no  person  dependent  upon  him  for  support,  and  the 
accident  proximately  causes  death,  the  death  benefit 
shall  consist  of  the  reasonable  expense  of  his  burial, 
not  exceeding  $100." 


CHAPTER  VIII 

COMPENSATION  TO  DEPENDENTS  FOR  DEATH » 

Page 

1.  Introduction 207 

2.  Death  not  natural  or  probable  consequence  of  injury 207 

3.  Suicide  while  insane  from  loss  of  eyesight 207 

4.  When  death  occurs  after  compensation  has  been  paid  for  a 

time 208 

5.  Illegitimate  child 208 

6.  Presumption  of  death  from  absence 208 

7.  Total  dependency  of  mother  on  one  son  when  other  sons 

are  living 209 

8.  Amount  due  partial  dependents  is  a  question  of  fact 209 

9.  Compensation  for  previous  injury  not  included  in  determin- 

ing basis  of  compensation  for  subsequent  injury  causing 
death 210 

10.  Deducting  wages  paid  to  an  assistant  in  computing  com- 

pensation   210 

11.  Deducting  poor-law  relief  received  by  dependent 210 

12.  Estoppel  by  payment  of  compensation  before  death,  of 

right  to  deny  liability  therefor  after  death 211 

13.  Death  from  anaesthetic  administered  for  the  purpose  of 

performing  operation 211 

14.  Claim  for  compensation  by  personal  representative  of  de- 

ceased dependent 212 

Page  Page 

California 212     New  Hampshire 221 

Illinois 213     New  Jersey 222 

Kansas 217     Ohio 224 

Massachusetts 218     Rhode  Island 225 

Michigan 219     Washington 227 

Nevada 220     Wisconsin 229 

^  See  Chapter  II  for  a  discussion  of  the  question  as  to  whom  the 
acts  apply.    See  Chapter  IX  for  discussion  of  manner  of  arriving  at 

206 


COMPENSATION   TO   DEPENDENTS    FOR   DEATH      207 
Suicide  while  insane  from  loss  of  eyesight 

1.  Introduction. 

Probably  on  no  subject  is  there  a  greater  variety  of 
provisions  in  the  various  statutes  than  on  the  questions 
of  the  amounts  and  the  persons  to  whom  paid  in  the 
case  of  death.  Some  general  rules  found  in  the  adjudi- 
cated cases  doubtless  will  be  found  to  be  helpful  in 
solving  the  numerous  problems  which  will  develop  in 
an  interpretation  of  the  various  statutes. 

The  statutes  generally  fix  a  method  of  determining 
the  death  benefit  payable  to  dependents  by  the  wages 
earned  by  the  workman  prior  to  his  death  and  provide 
in  the  same  manner  for  determining  the  amounts  pay- 
able for  permanent  or  temporary  disability.  The  ques- 
tion of  the  method  of  arriving  at  the  '^ average  wages" 
of  the  workman  is  discussed  in  Chapter  IX  following. 

2.  Death   not   natural   or   probable   consequence  of 

injury. 
Where  death  results  from  injury  dependents  can  re- 
cover although  death  may  not  have  been  the  natural 
or   probable   consequences   of   the   particular   injury. 
Dunham  v.  Clare  (1902),  66  L.  T.  751;  4  W.  C.  C.  102. 

3.  Suicide  while  insane  from  loss  of  eyesight. 

A  workman  who  had  previously  lost  the  sight  of  one 
eye  received  injuries  to  the  other  in  the  course  of  the 
employment.  He  became  almost  bhnd.  In  conse- 
quence his  nervous  system  broke  down  and  insanity 
followed.  He  later  committed  suicide.  His  widow 
applied  for  compensation  and  the  application  was  dis- 
missed as  irrelevant  by  the  arbitrator.    It  was  held  on 

average  wages.    See  Chapter  XVI  for  a  discussion  of  the  question 
as  to  who  are  dependents. 


208     Bradbury's  workmen's  compensation  law 

Presumption  of  death  from  absence 

appeal  that,  without  saying  whether  or  not  the  claim 
could  eventually  be  made  out,  the  claimant  was  en- 
titled to  go  to  proof,  and  the  arbitrator  ought  not  to 
have  dismissed  the  case  as  irrelevant  upon  its  face. 
M alone  v.  Cayzer,  Irvine  &  Co.  (1908),  45  Scotch  L.  R. 
351;1B.  W.  C.  C.  27. 

4.  When  death  occurs  after  compensation  has  been 

paid  for  a  time.^ 
An  employ^  in  receipt  of  compensation  returned  to 
work  and  earned  more  than  he  did  before  the  accident. 
Later  he  died  as  a  result  of  the  injury.  It  was  held 
that  his  dependents  were  entitled  to  compensation 
allowed  for  death,  less  the  sums  paid  to  the  workman 
in  his  lifetime.  Williams  v.  Vauxhall  Colliery  Co. 
(1907),  23  T.  L.  R.  591;  9  W.  C.  C.  120.  Dependents 
are  entitled  to  compensation,  although  the  deceased 
may  have  been  in  the  receipt  of  weekly  payments  under 
the  Act.    O'Keefe  v.  Lovatt  (1901),  4  W.  C.  C.  109. 

5.  Illegitimate  child.  ^ 

Where  compensation  is  awarded  to  an  illegitimate 
child,  it  should  not  be  in  a  sum  greater  than  the  de- 
ceased could  have  been  compelled  by  law  to  pay  for 
the  child's  support.  Gourlay  v.  Murray  (1908),  45 
Scotch  L.  R.  577;  1  B.  W.  C.  C.  335. 

6.  Presumption  of  death  from  absence.^ 

The  lapse  of  twelve  months  during  which  a  ship  has 

1  This  subject  is  dealt  with  specifically  in  the  various  statutes. 

2  See  Chapter  XVI  as  to  who  are  dependents. 

'  Most  of  the  States  have  laws  providing  for  temporary  adminis- 
tration on  the  estates  of  those  who  have  been  absent  for  a  certain 
length  of  time  without  having  been  heard  from.    Under  the  rule 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      209 

Amount  due  partial  dependent  is  a  question  of  fact 

not  been  heard  from,  after  which,  under  §  174  of  the 
British  Merchant  Shipping  Act  of  1894,  she  is  deemed 
to  have  been  lost  with  all  hands,  is  not  a  condition 
precedent  to  a  claim  for  compensation  under  the 
Workmen's  Compensation  Act,  where  by  the  ordinary 
rules  of  evidence  a  seaman  would  be  deemed  to  have 
been  lost  at  sea  with  his  ship,  an  application  for  com- 
pensation may  be  made,  notwithstanding  that  twelve 
months  have  not  elapsed  from  the  time  when  the  ship 
was  last  heard  of.  Maginn  v.  Carlingford  Lough  Steam- 
ship Co.  (1909),  43  Irish  L.  T.  123;  2  B.  W.  C.  C.  224. 

7.  Total  dependency  of  mother  on  one  son  when  other 

sons  are  living.^ 
A  widow,  who  had  five  grown  up  sons  and  who  were 
all  working  miners,  lived  with  one  of  them,  the  only 
unmarried  one,  and  was  in  fact  entirely  supported  by 
his  earnings  at  the  time  of  his  death.  It  was  held  that 
she  was  totally  dependent  upon  the  earnings  of  her  son, 
notwithstanding  the  other  sons  were  able  and  liable  to 
contribute  to  her  support.  Rintoul  v.  Dalmeny  Oil  Co. 
(1908),  45  Scotch  L.  R.  809;  1  B.  W.  C.  C.  340. 

8.  Amount  due  partial  dependent  is  a  question  of  fact.^ 
The  amount  due  to  a  partial  dependent  is  a  question 

laid  down  in  the  case  in  the  text  it  is  not  necessary  to  await  the 
statutory  period  in  all  cases  even  though  there  is  no  direct  evidence 
of  death.  There  must,  however,  be  common-law  evidence  which 
raises  a  presumption  of  death  from  the  circumstances  disclosed. 
This  is  really  nothing  more  than  saying  that  there  must  be  sufficient 
common-law  evidence  from  which  the  court  can  find  as  a  fact  that 
the  workman  is  dead. 

^  See  Chapter  XVI  for  a  discussion  of  who  are  dependents. 

2  See  Chapter  XXIV  for  procedure  in  determining  dependency. 
14 


210     Bradbury's  workmen's  compensation  law 

Deducting  poor-law  relief  received  by  dependent 

of  fact  in  each  case.    Littleford  v.  Connell  (1909),  3  B. 
W.  C.  C.  1. 

9.  Compensation  for  previous  injury  not  included  in 

determining  basis  of  compensation  for  subse- 
quent injury  causing  death. 
A  workman  who  had  been  a  coUier  in  the  respond- 
ents' mine  was,  at  the  time  of  his  death,  employed  at 
Hght  work.  He  had  previously  met  with  an  accident 
in  the  same  employment,  and  was  at  the  time  of  the 
second  accident,  which  proved  fatal,  receiving  the  same 
compensation  in  addition  to  the  wages  for  the  light 
work.  It  was  held  that  the  compensation  which  the 
deceased  workman  was  receiving  could  not  be  taken 
into  account  in  estimating  the  earning  in  the  employ- 
ment.   Gcyagh  v.  Crawshay  Brothers,  1  B.  W.  C.  C.  374. 

10.  Deducting  wages   paid   to  an  assistant  in  com- 
puting compensation.^ 

Where  a  miner  was  killed  it  was  held  that  the  portion 
of  his  wages  which  he  paid  to  an  assistant  should  be 
deducted  in  computing  the  compensation,  but  that  the 
cost  of  the  explosives  bought  by  him  in  the  prosecution 
of  the  work,  should  not,  under  §  2,  subsection  (d)  be 
deducted,  in  computing  such  compensation.  M'Kee  v. 
John  S.  Stein  &  Co.  (1909),  47  Scotch  L.  R.  39;  3  B.  W. 
C.  C.  544. 

11.  Deducting  poor-law  relief  received  by  dependent.^ 

The  mother   of   a   deceased   workman   earning   £1 

Also  see  Chapter  XVI  for  a  discussion  of  the  question  of  who  are 
dependents. 

'  See  Chapter  IX  for  a  further  discussion  of  this  subject. 

2  See  Chapter  IX  for  further  discussion  of  basis  of  compensation. 


COMPENSATION   TO   DEPENDENTS   FOR  DEATH      211 
Death  from  anaesthetic 

weekly  claimed  compensation  as  a  partial  dependent. 
She  was,  before  and  after  her  son's  death,  in  receipt  of 
poor-law  relief  of  2  shilUngs  weekly,  and  received  14 
shillings  weekly  from  deceased.  It  was  held  that  the 
method  of  calculating  the  sum  was  to  award  three 
years'  earnings,  and  then  to  deduct  from  that  three 
years  at  2  shillings  weekly,  for  the  space  of  three  years. 
Byles  V.  Pool  and  another  (1909),  2  B.  W.  C.  C.  484.     • 

12.  Estoppel  by  payment  of  compensation  before 
death  of  right  to  deny  liability  therefor  after 
death. 

Where  an  employer  has  paid  compensation  up  to  the 
time  of  the  death  of  a  workman  under  a  registered 
agreement,  he  is  not  estopped,  after  the  death  of  the 
workman,  from  contending  that  the  death  was  due  to 
disease  and  not  to  the  accident.  (House  of  Lords) 
Cleverley  &  Others  v.  Gas  Light  &  Coke  Co.  (1907),  1 
B.  W.  C.  C.  82. 

13.  Death  from  anaesthetic  administered  for  the  pur- 
pose of  performing  operation. 

A  workman's  hand  was  caught  between  two  rollers 
and  severely  injured.  In  the  ordinary  course  the  hand 
would  have  been  amputated,  but  the  surgeon  en- 
deavored to  save  the  hand  by  thoroughly  cleansing  the 
wound.  This  being  very  painful,  an  anaesthetic  was 
administered,  and  this  operation,  which  was  described 
as  a  "bold  experiment"  was  successful,  but  two  months 
after  the  first  operation,  in  order  to  prevent  contraction, 
which  would  have  rendered  the  hand  rigid  and  prac- 
tically useless,  it  became  necessary  to  graft  some  skin 
on  the  hand.  This  operation  being  painful,  though  not 
dangerous,  an  ansesthetic  was  again  administered,  and 


212    Bradbury's  workmen's  compensation  law 

California 

the  man  died  under  it.  It  was  held  that  death  resulted 
from  the  original  injury  and  the  widow  was  entitled  to 
compensation.  Shirt  v.  The  Calico  Printers^  Ass'n 
(1909),  100  L.  T.  740;  2  B.  W.  C.  C.  342. 

14.  Claim  for  compensation  by  personal  representa- 
tive of  deceased  dependent.^ 
The  right  to  compensation  growing  out  of  the  death 
of  a  workman  passes  to  the  personal  representatives  of 
the  deceased  dependent.  Darlington  v.  Roscoe  &  Sons 
(1906),  8  W.  C.  C.  4. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§8  (3).  The  death  of  the  injured  employ  €  shall 

not  affect  the  obligation  of  the  employer  under  sub- 
sections (1)  and  (2)  of  this  section,  so  far  as  his  liability 
shall  have  accrued  and  become  payable  at  the  time  of 
the  death,  but  the  death  shall  be  deemed  the  termina- 
tion of  disability,  and  the  employer  shall  thereupon 
be  liable  for  the  following  death  benefits  in  lieu  of  any 
further  disability  benefits,  provided  that  such  death 
was  approximately  caused  by  the  accident  causing 
such  disability: 

"  (a)  In  case  the  deceased  employe  leaves  a  person 
or  persons  wholly  dependent  upon  him  for  support, 
the  death  benefit  shall  be  a  sum  sufficient  when  added 
to  the  benefits  which  shall,  at  the  time  of  death,  have 
accrued  and  become  payable  under  the  provisions  of 
subsection  (2)  of  this  section  to  make  the  total  com- 
pensation for  the  injury  and  death  [exclusive  of  the 
benefit  provided  for  in  subsection  (1)],  equal  to  three 
times  his   annual   average   earnings,   not  less   than 

'  See  also  Chapter  XVI,  post,  page  324. 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      213 
Illinois 

$1,000  nor  more  than  $5,000,  the  same  to  be  payable, 
unless  and  until  the  industrial  accident  board  shall 
otherwise  direct  in  weekly  installments  corresponding 
in  amount  to  the  weekly  earnings  of  the  employ^. 

"(6)  In  case  the  deceased  employ^  leaves  no  one 
wholly  dependent  on  him  for  support,  but  one  or  more 
persons  partially  dependent  therefor,  the  death  bene- 
fit shall  be  such  percentage  of  three  times  such  average 
annual  earnings  of  the  employ^  as  the  annual  amount 
devoted  by  the  deceased  to  the  support  of  the  person 
or  persons  so  partially  dependent  upon  him  for  support 
bears  to  such  average  earnings,  the  same  to  be  payable, 
unless  and  until  the  industrial  accident  board  shall 
otherwise  direct,  in  weekly  installments  corresponding 
to  the  weekly  earnings  of  the  employ^;  provided,  that 
the  total  compensation  for  the  injury  and  death,  [exclu- 
sive of  the  benefit  provided  for  in  said  subsection(l)] 
shall  not  exceed  three  times  such  average  annual  earn- 
ings. 

"  (c)  In  the  event  that  the  accident  shall  have  ap- 
proximately caused  permanent  disability,  either  total 
or  partial,  and  the  employ^  shall  die  within  fifteen 
years  after  the  date  of  the  accident,  liability  for  the 
death  benefits  provided  for  in  said  subsections  (a)  and 
(b)  respectively  shall  exist  only  where  the  accident 
was  the  approximate  cause  of  death  within  said  period 
of  fifteen  years." 

If  no  dependents  are  left  funeral  expenses  not  ex- 
ceeding $100.  See  §8  (3)  (d).  See  Chapter  VII, 
ante,  page  202. 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  4.  The  amount  of  compensation  which  the  em- 
ployer who  accepts  the  provisions  of  this  Act  shall  pay 


214    beadbury's  workmen's  compensation  law 

Illinois 

for  injury  to  the  employee  which  results  in  death, 
shall  be: 

"a.  If  the  employ^  leaves  any  widow,  child  or 
children,  or  parent  or  other  lineal  heirs  to  whose  sup- 
port he  had  contributed  within  five  years  previous  to 
the  time  of  his  death,  a  sum  equal  to  four  times  the 
average  annual  earnings  of  the  employ^,  but  not  less 
in  any  event  than  one  thousand  five  hundred  dollars, 
and  not  more  in  any  event  than  three  thousand  five 
hundred  dollars.  Any  weekly  payments,  other  than 
necessary  medical  or  surgical  fees,  shall  be  deducted 
in  ascertaining  such  amount  payable  on  death. 

"b.  If  the  employ^  leaves  collateral  heirs  dependent 
upon  his  earnings,  such  a  percentage  of  the  sum  pro- 
vided in  Section  *a'  as  the  contributions  which  de- 
ceased made  to  the  support  of  these  dependents,  bore 
to  his  earnings. 

"c.  If  the  employ 6  leaves  no  widow  or  child  or 
children,  parents  or  lineal  or  collateral  heirs  dependent 
upon  his  earnings,  a  sum  not  to  exceed  one  hundred 
and  fifty  dollars  for  burial  expenses. 

"d.  All  compensation  provided  for  in  this  section 
to  be  paid  in  case  injury  results  in  death,  shall  be  paid 
in  installments  equal  to  one-half  the  average  earnings, 
at  the  same  intervals  at  which  the  wages  or  earnings 
of  the  employ^  were  paid  while  he  was  living;  or  if 
this  shall  not  be  feasible,  then  the  installments  shall 
be  paid  weekly. 

"e.  The  compensation  to  be  paid  for  injuries  which 
result  in  death,  as  provided  for  in  this  section,  shall 
be  paid  to  the  personal  representative  of  the  deceased 
employ^  and  shall  be  distributed  by  such  personal 
representative  to  the  beneficiaries  entitled  thereto,  in 
accordance  with  the  laws  of  this  State  relating  to  the 
descent  and  distribution  of  personal  property." 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      215 
Illinois 

In  case  of  death  after  a  period  of  payment  for  dis- 
ability see  §  5,  subdivision  e  (1)  in  Chapter  IX,  j)ost, 
page  257. 

"§6.  The  basis  for  computing  the  compensation 
provided  for  in  Sections  4  and  5  of  this  Act  shall  be  as 
follows : 

"a.  The  compensation  shall  be  computed  on  the 
basis  of  the  annual  earnings  which  the  injured  person 
received  as  salary,  wages  or  earnings  in  the  employ- 
ment of  the  same  employer  during  the  year  next  pre- 
ceding the  injury. 

*'6.  Employment  by  the  same  employer  shall  be 
taken  to  mean  employment  by  the  same  employer  in 
the  grade  in  which  the  employe  was  employed  at 
the  time  of  the  accident,  uninterrupted  by  absence 
from  work  due  to  illness  or  any  other  unavoidable 
cause. 

"c.  The  annual  earnings  if  not  otherwise  deter- 
minable shall  be  regarded  as  three  hundred  times  the 
average  daily  earnings  in  such  computation. 

^'d.  If  the  injured  person  has  not  been  engaged  in 
the  employment  for  a  full  year  immediately  preceding 
the  accident,  the  compensation  shall  be  computed  ac- 
cording to  the  annual  earnings,  which  persons  of  the 
same  class  in  the  same  or  in  neighboring  employments 
of  the  same  kind  have  earned  during  such  period.  And 
if  this  basis  of  computation  is  impossible,  or  should 
appear  to  be  unreasonable,  three  hundred  times  the 
amount  which  the  injured  person  earned  on  an  average 
on  those  days  when  he  was  working  during  the  year 
next  preceding  the  accident,  shall  be  used  as  a  basis 
for  the  computation. 

"e.  In  the  case  of  injured  employes  who  earn  either 
no  wage  or  less  than  three  hundred  times  the  usual 


216    Bradbury's  workmen's  compensation  law 

Illinois 

daily  wage  or  earnings  of  the  adult  day  laborers  in  the 
same  line  of  industry  of  that  locality,  the  yearly  wage 
shall  be  reckoned  as  three  hundred  times  the  average 
daily  local  wage. 

"/.  As  to  employes  in  employments  in  which  it  is 
the  custom  to  operate  for  a  part  of  the  whole  number 
of  working  days  in  each  year,  such  number  shall  be 
used  instead  of  three  hundred  as  a  basis  for  computing 
the  annual  earnings,  provided  the  minimum  number 
of  days  which  shall  be  used  for  the  basis  of  the  year's 
work  shall  be  not  less  than  two  hundred. 

"g.  Earnings,  for  the  purpose  of  this  section,  shall 
be  based  on  the  earnings  for  the  number  of  hours  com- 
monly regarded  as  a  day's  work  for  that  employment, 
and  shall  exclude  overtime  earnings.  The  earnings 
shall  not  include  any  sum  which  the  employer  has 
been  accustomed  to  pay  the  employ^  to  cover  any 
special  expense  entailed  on  him  by  the  nature  of  his 
employment. 

"A.  In  computing  the  compensation  to  be  paid  to 
any  employ^  who,  before  the  accident  for  which  he 
claims  compensation,  was  disabled  and  drawing  com- 
pensation under  the  terms  of  this  Act,  the  compensa- 
tion for  each  subsequent  injury  shall  be  apportioned 
according  to  the  proportion  of  incapacity  and  dis- 
ability caused  by  the  respective  injuries  which  he  may 
have  suffered. 

"  §  7.  The  compensation  herein  provided  shall  be 
the  measure  of  the  responsibility  which  the  employer 
has  assumed  for  injuries  or  death  that  may  occur  to 
employes  in  his  employment  subject  to  the  provisions 
of  this  Act,  and  it  shall  not  be  in  any  way  reduced  by 
contributions  from  employes. 

"§  8.  If  it  is  proved  that  the  injury  to  the  employ^ 
resulted  from  his  deliberate  intention  to  cause  such 


COMPENSATION   TO    DEPENDENTS   FOR   DEATH      217 

Kansas 

injury,  no  compensation  with  respect  to  that  injury 
shall  be  allowed. 


KANSAS 

(L.  1911,  c.  218) 

*'§  11.  Amount  of  compensation.  The  amount  of 
compensation  under  this  act  shall  be,  (a)  Where  death 
results  from  injury:  (1)  If  the  workman  leaves  any 
dependents  wholly  dependent  upon  his  earnings,  an 
amount  equal  to  three  times  his  earnings  for  the  pre- 
ceding year  but  not  exceeding  thirty-six  hundred 
dollars  and  not  less  than  twelve  hundred  dollars,  pro- 
vided, such  earnings  shall  be  computed  upon  the  basis 
of  the  scale  which  he  received  or  Would  have  been  en- 
titled to  receive  had  he  been  at  work,  during  the  thirty 
days  next  preceding  the  accident;  and,  if  the  period 
of  the  workman's  employment  by  the  said  employer 
had  been  less  than  one  year,  then  the  amount  of  his 
earnings  during  the  said  year  shall  be  deemed  to  be 
fifty-two  times  his  average  weekly  earnings  during 
the  period  of  his  actual  employment  under  said  em- 
ployer; provided,  that  the  amount  of  any  payments 
made  under  this  act  and  any  lump  sum  paid  hereunder 
for  such  injury  from  which  death  may  thereafter  re- 
sult shall  be  deducted  from  such  sum;  and  provided, 
however,  that  if  the  workman  does  not  leave  any  de- 
pendents, citizens  of  and  residing  at  the  time  of  the 
accident  in  the  United  States  or  the  Dominion  of 
Canada,  the  amount  of  compensation  shall  not  exceed 
in  any  case  seven  hundred  and  fifty  dollars.  (2)  If 
the  workman  does  not  leave  any  such  dependents,  but 
leaves  any  dependents  in  part  dependent  upon  his 
earnings,  such  proportion  of  the  amount  payablie  under 
the  foregoing  provisions  of  this  section,  as  may  be 


218  Bradbury's  workmen's  compensation  law 

Massachusetts 

agreed  upon  or  determined  to  be  proportionate  to  the 
injury  to  the  said  dependents;  and  (3)  if  he  leaves  no 
dependents,  the  reasonable  expense  of  his  medical 
attendance  and  burial,  not  exceeding  one  hundred 
dollars." 

For  the  rule  of  compensation,  that  is,  the  manner  of 
computing  the  wages  to  be  made  the  basis  of  the  award 
for  compensation,  see  §  12,  reprinted  in  Chapter  IX, 
post,  page  259. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §6.  If  death  results  from  the  injury, 
the  association  shall  pay  the  dependents  of  the  em- 
ploy6,  wholly  dependent  upon  his  earnings  for  sup- 
port at  the  time  of  the  injury,  a  weekly  payment  equal 
to  one-half  his  average  weekly  wages,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week, 
for  a  period  of  three  hundred  weeks  from  the  date 
of  the  injury.  If  the  employ^  leaves  dependents 
only  partly  dependent  upon  his  earnings  for  support 
at  the  time  of  his  injury,  the  association  shall  pay  such 
dependents  a  weekly  compensation  equal  to  the  same 
proportion  of  the  weekly  payments  for  the  benefit 
of  persons  wholly  dependent  as  the  amount  con- 
tributed by  the  employ^  to  such  partial  dependents 
bears  to  the  annual  earnings  of  the  deceased  at  the 
time  of  his  injury.  When  weekly  payments  have  been 
made  to  an  injured  employ^  before  his  death,  the  com- 
pensation to  dependents  shall  begin  from  the  date 
of  the  last  of  such  payments,  but  shall  not  continue 
more  than  three  hundred  weeks  from  the  date  of  the 
injury." 

"  Part  II,  §  12.  No   savings   or    insurance   of   the 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      219 

Michigan 

injured  employe,  independent  of  this  act,  shall  be 
taken  into  consideration  in  determining  the  com- 
pensation to  be  paid  hereunder,  nor  shall  benefits 
derived  from  any  other  source  than  the  association 
be  considered  in  fixing  the  compensation  under  this 
act. 

"§  13.  The  compensation  payable  under  this  act 
in  case  of  the  death  of  the  injured  employ^  shall  be 
paid  to  his  legal  representative;  or,  if  he  has  no  legal 
representative,  to  his  dependents;  or,  if  he  leaves 
no  dependents,  to  the  persons  to  whom  payment  of 
the  expenses  for  the  last  sickness  and  burial  is  due. 
If  the  payment  is  made  to  the  legal  representative 
of  the  deceased  employ^,  it  shall  be  paid  by  him 
to  the  dependents  or  other  persons  entitled  thereto 
under  this  act." 

MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §  5.  If  death  results  from  the  injury,  the 
employer  shall  pay,  or  cause  to  be  paid,  subject,  how- 
ever, to  the  provisions  of  section  twelve  hereof,  in  one 
of  the  methods  hereinafter  provided,  to  the  dependents 
of  the  employ^,  wholly  dependent  upon  his  earnings 
for  support  at  the  time  of  the  injury,  a  weekly  pay- 
ment equal  to  one-half  his  average  weekly  wages,  but 
not  more  than  ten  dollars  nor  less  than  four  dollars  a 
week  for  a  period  of  three  hundred  weeks  from  the  date 
of  the  injury.  If  the  employ^  leaves  dependents  only 
partly  dependent  upon  his  earnings  for  support  at  the 
time  of  his  injury,  the  weekly  compensation  to  be  paid 
as  aforesaid  shall  be  equal  to  the  same  proportion  of 
the  weekly  payments  for  the  benefit  of  persons  wholly 
dependent  as  the  amount  contributed  by  the  employ^ 
to  such  partial  dependents  bears  to  the  annual  earn- 


220    Bradbury's  workmen's  compensation  law 

Nevada 

ings  of  the  deceased  at  the  time  of  his  injury.  When 
weekly  payments  have  been  made  to  an  injured  em- 
ploy4  before  his  death  the  compensation  to  depend- 
ents shall  begin  from  the  date  of  the  last  of  such  pay- 
ments, but  shall  not  continue  more  than  three  hundred 
weeks  from  the  date  of  the  injury." 

NEVADA 

(L.  1911,  c.  183) 

"  §  5.  The  amount  of  compensation  in  ease  death 
results  from  injury,  or  for  death  accruing  within  five 
years  as  a  result  of  injury,  shall  be: 

"(o)  If  the  workman  leave  any  person  or  persons 
who  at  the  time  of  the  accident  were  wholly  dependent 
upon  his  earnings,  a  sum  equal  to  his  earnings  in  the 
employment  of  the  same  employer  during  the  three 
years  next  preceding  the  injury,  or  the  sum  of  two 
thousand  dollars,  whichever  of  these  sums  is  the 
greater,  but  not  exceeding  in  any  case  three  thousand 
dollars;  provided,  that  the  total  sum  of  any  weekly  pay- 
ments made  under  this  act  shall  be  deducted  from  such 
sum;  and  if  the  period  of  the  workman's  employ- 
ment by  the  same  employer  has  been  less  than  the 
said  three  years,  then  the  amount  of  his  earnings  dur- 
ing the  said  three  years  shall  be  deemed  to  be  nine 
hundred  and  thirty-six  times  his  average  daily  earn- 
ings during  the  period  of  his  actual  employment  under 
the  same  employer; 

"  (6)  If  the  workman  leave  only  person  or  persons 
who  at  the  time  of  the  accident  were  partly  dependent 
upon  his  earnings,  a  sum  equal  to  50  per  cent  of  the 
amount  payable  under  the  foregoing  provisions  of 
this  section; 

"  (c)  If  the  workman  leave  no  person  at  the  time  of 
the  accident  who  was  dependent  upon  his  earnings, 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      221 
New  Hampshire 

the  reasonable  expenses  of  his  medical  attendance 
and  burial,  not  exceeding  in  all  three  hundred  dollars. 
"Whatever  sum  is  payable  under  this  section  in 
case  of  death  of  the  injured  workman  shall  be  paid 
to  his  legal  representatives  for  the  benefit  of  such  de- 
pendents, and  if  he  leaves  no  such  dependents  then 
to  the  public  administrator,  for  the  benefit  of  the 
person  or  persons  to  whom  the  expenses  of  medical 
attendance  and  burial  are  due." 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"  §  6  (1)  The  amount  of  compensation  shall  be, 
in  case  death  results  from  injury: 

"(o)  If  the  workman  leaves  any  widow,  children 
or  parents,  resident  of  this  State,  at  the  time  of  his 
death,  then  wholly  dependent  on  his  earnings,  a  sum 
to  compensate  them  for  loss,  equal  to  one  hundred 
and  fifty  times  the  average  weekly  earning  of  such 
workman  when  at  work  on  full  time  during  the  pre- 
ceding year  during  which  he  shall  have  been  in  the 
employ  of  the  same  employer,  or  if  he  shall  have  been 
in  the  employment  of  the  same  employer  for  less  than 
a  year  then  one  hundred  and  fifty  times  his  average 
weekly  earnings  on  full  time  for  such  less  period. 
But  in  no  event  shall  such  sum  exceed  $3,000.  Any 
weekly  payment  made  under  this  Act  shall  be  de- 
ducted from  the  sum  so  fixed. 

"  (6)  If  such  widow,  children  or  parents  at  the  time 
of  his  death  are  in  part  only  dependent  upon  his 
earnings,  such  proportion  of  the  benefits  provided 
for  those  wholly  dependent  as  the  amount  of  wage 
contributed  by  the  deceased  to  such  partial  dependents 
at  the  time  of  injury  bore  to  the  total  wage  of  the 
deceased. 


222     Bradbury's  workmen's  compensation  law 

New  Jersey 

"(c)  If  he  leaves  no  such  dependents,  the  reason- 
able expenses  of  his  medical  attendance  and  burial, 
not  exceeding  one  hundred  dollars. 

"Whatever  sum  may  be  determined  to  be  payable 
under  this  Act  in  case  of  death  of  the  injured  work- 
man shall  be  paid  to  his  legal  representative  for  the 
benefit  of  such  dependents,  or  if  he  leaves  no  such 
dependents,  for  the  benefit  of  the  persons  to  whom 
the  expenses  of  medical  attendance  and  burial  are 
due." 


NEW  JERSEY 

(L.  1911,  c.  95) 

"§  2-12.  Bdsis  of  computation  in  case  of  death.  In 
case  of  death  compensation  shall  be  computed  but 
not  distributed  on  the  following  basis: 

"  (1)  Actual  dependents. 

"  If  orphan  or  orphans,  a  minimum  of  twenty-five 
per  centum  of  wages  of  deceased,  with  ten  per  centum 
additional  for  each  orphan  in  excess  of  two,  with  a 
maximum  of  sixty  per  centum. 

"If  widow  alone,  twenty-five  per  centum  of  wages. 

"If  widow  and  one  child,  forty  per  centum  of  wages. 

"If  widow  and  two  children,  forty-five  per  centum 
of  wages. 

"If  widow  and  three  children,  fifty  per  centum 
of  wages. 

"If  widow  and  four  children,  fifty-five  per  centum 
of  wages. 

"If  widow  and  five  children  or  more,  sixty  per 
centum  of  wages. 

"If  widow  and  father  or  mother,  fifty  per  centum 
of  wages. 

"If    grandparents,    grandchildren,    or    minor,    or 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      223 
New  Jersey 

incapacitated  brothers  or  sisters,  twenty-five  per 
centum  of  wages. 

"Distribution  of  compensation  in  case  of  death. 
Compensation  in  case  of  death  shall  be  computed 
on  the  basis  of  the  foregoing  schedule,  but  shall  be 
distributed  according  to  the  laws  of  this  State  pro- 
viding for  the  distribution  of  the  personal  property 
of  an  intestate  decedent,  unless  decedent  has  in  fact 
left  a  will. 

"  (2)  No  dependents. 

"Sickness  and  burial.  Expense  of  last  sickness 
and  burial  not  exceeding  two  hundred  dollars. 

"Orphans  and  minors.  In  computing  compensation 
to  orphans  or  other  children,  only  those  under  six- 
teen years  of  age  shall  be  included,  and  only  during 
the  period  in  which  they  are  under  that  age,  at 
which  time  payment  on  account  of  such  child  shall 
cease. 

"Weekly  compensation.  Proviso.  Duration.  The 
compensation  in  case  of  death  shall  be  subject  to  a 
maximum  compensation  of  ten  dollars  per  week  and 
a  minimum  of  five  dollars  per  week;  provided,  that  if 
at  the  time  of  injury  the  employe  receives  wages  of 
less  than  five  dollars  per  week,  then  the  compensation 
shall  be  the  full  amount  of  such  wages  per  week. 
This  compensation  shall  be  paid  during  three  hundred 
weeks. 

"Aliens  excepted.  Compensation  under  this  sched- 
ule shall  not  apply  to  alien  dependents  not  residents 
of  the  United  States." 

As  to  whom  payments  will  be  ordered  by  the  court 
to  be  made  in  case  of  dispute,  see  §  II,  paragraph  19, 
of  Act,  which  will  be  found  in  Chapter  XXIV,  post, 
page  428. 


224     Bradbury's  workmen's  compensation  law 

Ohio 

OHIO 

(L.  1911,  c.  000) 

"  §  28.  Injuries  resulting  in  death — compensation. 
In  case  the  injury  causes  death  within  the  period  of 
two  years  the  benefits  shall  be  in  the  amounts  and  to 
the  persons  following: 

"1.  If  there  be  no  dependents,  the  disbursements 
from  the  insurance  fund  shall  be  Umited  to  the  ex- 
pense provided  for  in  sections  23  and  24.^ 

"2.  If  there  are  wholly  dependent  persons  at  the 
time  of  the  death,  the  payment  shall  be  sixty-six  and 
two-thirds  per  cent  of  the  average  weekly  wage, 
and  to  continue  for  the  remainder  of  the  period  be- 
tween the  date  of  the  death  and  six  years  after  the 
date  of  the  injury,  and  not  to  amount  to  more  than  a 
maximum  of  thirty-four  hundred  dollars,  nor  less 
than  a  minimum  of  one  thousand  five  hundred  dollars. 

"3.  If  there  are  partly  dependent  persons  at  the 
time  of  the  death,  the  payment  shall  be  sixty-six 
and  two-thirds  per  cent  of  the  average  weekly  wage 
and  to  continue  for  all  or  such  portion  of  the  period 
of  six  years  after  the  date  of  the  injury,  as  the  board 
in  each  case  may  determine,  and  not  to  amount  to 
more  than  a  maximum  of  thirty-four  hundred  dol- 
lars." 2 

"§31.  Basis  of  compensation.  The  average  weekly 
wage  of  the  injured  person  at  the  time  of  the  injury 
shall  be  taken  as  the  basis  upon  which  to  compute 
the  benefits. 

1  Section  23  provides  for  first-aid  medical  attention  (see  Chap- 
ter VI,  ante,  page  200)  and  §  24  to  funeral  expenses  (see  Chap- 
ter VII,  ante,  page  204). 

*  As  to  who  are  the  dependents  to  whom  benefits  are  to  be  paid, 
see  Chapter  XVI,  post,  page  329. 


COMPENSATION   TO    DEPENDENTS   FOR   DEATH      225 
Rhode  Island 

"§32.  Future  earnings  considered.  If  it  is  estab- 
lished that  the  injured  employe  was  of  such  age  and 
experience  when  injured  as  that  under  natural  con- 
ditions his  wages  would  be  expected  to  increase, 
the  fact  may  be  considered  in  arriving  at  his  average 
weekly  wage."  ^ 

RHODE  ISLAND 

(L.  1912,  c.  888) 

"Art.  II,  §  6.  Injuries  resulting  in  death.  If  death 
results  from  the  injury,  the  employer  shall  pay  the 
dependents  of  the  employ^  wholly  dependent  upon 
his  earnings  for  support  at  the  time  of  his  injury  a 
weekly  payment  equal  to  one-half  his  average  weekly 
wages,  earnings  or  salary,  but  not  more  than  ten 
dollars  nor  less  than  four  dollars  a  week,  for  a  period 
of  three  hundred  weeks  from  the  date  of  the  injury: 
Provided,  however,  that,  if  the  dependent  of  the  em- 
ploye to  whom  the  compensation  shall  be  payable 
upon  his  death  is  the  widow  of  such  employe,  upon 
her  death  the  compensation  thereafter  payable  under 
this  act  shall  be  paid  to  the  child  or  children  of  the 
deceased  employe,  including  adopted  and  stepchil- 
dren, under  the  age  of  eighteen  years,  or  over  said  age 
but  physically  or  mentally  incapacitated  from  earning, 
dependent  upon  the  widow  at  the  time  of  her  death. 
In  case  there  is  more  than  one  child  thus  dependent, 
the  compensation  shall  be  divided  equally  among 
them.  If  the  employe  leaves  dependents  only  partly 
dependent  upon  his  earnings  for  support  at  the  time 

1  This  feature  has  been  introduced  in  some  of  the  compensation 
acts  of  the  various  States.  Undoubtedly  it  will  be  the  source  of 
much  controversy.  An  attempt  to  invoke  this  principle  probably 
will  be  made  in  practically  all  cases  of  employes  who  are  killed  or 
suffer  permanent  disability  imder  the  age  of  about  thirty. 
15 


226    Bradbury's  workmen's  compensation  law 

Rhode  Island 

of  his  injury,  the  employer  shall  pay  such  dependents 
for  a  period  of  three  hundred  weeks  from  the  date  of 
the  injury  a  weekly  compensation  equal  to  the  same 
proportion  of  the  weekly  payments  herein  provided 
for  the  benefit  of  persons  wholly  dependent  as  the 
amount  contributed  annually  by  the  employ^  to  such 
partial  dependents  bears  to  the  annual  earnings  of 
the  deceased  at  the  time  of  injury.  When  weekly 
payments  have  been  made  to  an  injured  employ 6  be- 
fore his  death,  the  compensation  to  dependents  shall 
begin  from  the  date  of  the  last  of  such  payments,  but 
shall  not  continue  more  than  three  hundred  weeks 
from  the  date  of  the  injury.  Provided,  however,  that, 
if  the  deceased  leaves  no  dependents  at  the  time  of 
the  injury,  the  employer  shall  not  be  liable  to  pay 
compensation  under  this  act  except  as  specifically 
provided  in  section  9  of  this  Article." 

For  definition  of  average  weekly  wage  see  Chap- 
ter IX,  post,  page  267. 

"Art.  II,  §  14.  Deductions  from  compensation.  No 
savings  or  insurance  of  the  injured  employe,  inde- 
pendent of  this  act,  shall  be  taken  into  consideration 
in  determining  the  compensation  to  be  paid  hereunder, 
nor  shall  benefits  derived  from  any  other  source  than 
the  employer  be  considered  in  fixing  the  compensation 
under  this  act. 

"Art.  II,  §  15.  Compensation — to  whom  paid.  The 
compensation  payable  under  this  act  in  case  of  the 
death  of  the  injured  employe  shall  be  paid  to  his  legal 
representatives;  or,  if  he  has  no  legal  representative, 
to  his  dependents  entitled  thereto,  or,  if  he  leaves  no 
such  dependents,  to  the  person  to  whom  the  expenses 
for  the  burial  and  last  sickness  are  due.  If  the  pay- 
ment is  made  to  the  legal  representative  of  the  de- 


COMPENSATION  TO  DEPENDENTS  FOR  DEATH   227 

Washington 

ceased  employe,  it  shall  be  paid  by  him  to  the  de- 
pendents or  other  persons  entitled  thereto  under  this 
act.  All  payments  of  compensation  under  this  act 
shall  cease  upon  the  death  of  the  employ^  from  a  cause 
other  than  or  not  induced  by  the  injury  for  which  he  is 
receiving  compensation." 

As  to  who  are  dependents,  see  Chapter  XVI. 

"Art.  II,  §  16.  Minors  and  mentally  incompetent. 
In  case  an  injured  employe  is  mentally  incompetent, 
or,  where  death  results  from  the  injury,  in  case  any 
of  his  dependents  entitled  to  compensation  hereunder 
are  mentally  incompetent  or  minors  at  the  time  when 
any  right,  privilege  or  election  accrues  to  him  or  them 
under  this  act,  his  conservator,  guardian,  or  next 
friend  may,  in  his  behalf,  claim  and  exercise  such 
right,  privilege,  or  election,  and  no  limitation  of  time 
in  this  act  provided  shall  run  so  long  as  such  incom- 
petent or  minor  has  no  conservator  or  guardian." 

WASHINGTON 

(L.  1911,  c.  74) 

"  §  5.  Schedule  of  awards.  Each  workman  who 
shall  be  injured  whether  upon  the  premises  or  at  the 
plant  or,  he  being  in  the  course  of  his  employment, 
away  from  the  plant  of  his  employer,  or  his  family 
or  dependents  in  case  of  death  of  the  workman, 
shall  receive  out  of  the  accident  fund  compensation 
in  accordance  with  the  following  schedule,  and,  ex- 
cept as  in  this  act  otherwise  provided,  such  payment 
shall  be  in  lieu  of  any  and  all  rights  of  action  what- 
soever against  any  person  whomsoever." 

"compensation  schedule 
"(a)  Where  death  results  from  the  injury  the  ex- 


228     Bradbury's  workmen's  compensation  law 

Washington 

penses  of  burial  shall  be  paid  in  all  cases,  not  to  exceed 
$75.00  in  any  case,  and 

"(1)  If  the  workman  leaves  a  widow  or  invahd 
widower,  a  monthly  payment  of  $20.00  shall  be  made 
throughout  the  life  of  the  surviving  spouse,  to  cease 
at  the  end  of  the  month  in  which  remarriage  shall 
occur;  and  the  surviving  spouse  shall  also  receive 
$5.00  per  month  for  each  child  of  the  deceased  under 
the  age  of  sixteen  years  at  time  of  the  occurrence  of  the 
injury  until  such  minor  child  shall  reach  the  age  of 
sixteen  years,  but  the  total  monthly  payment  under 
this  paragraph  (1)  of  subdivision  (a)  shall  not  exceed 
$35.00.  Upon  remarriage  of  a  widow  she  shall  receive, 
once  and  for  all,  a  lump  sum  equal  to  twelve  times  her 
monthly  allowance,  viz.:  the  sum  of  $240,  but  the 
monthly  payment  for  the  child  or  children  shall  con- 
tinue as  before. 

"(2)  If  the  workman  leaves  no  wife  or  husband, 
but  a  child  or  children  under  the  age  of  sixteen  years, 
a  monthly  payment  of  $10.00  shall  be  made  to  each 
such  child  until  such  child  shall  reach  the  age  of  six- 
teen years,  but  the  total  monthly  payment  shall  not 
exceed  $35.00  and  any  deficit  shall  be  deducted  pro- 
portionately among  the  beneficiaries. 

"  (3)  If  the  workman  leaves  no  widow,  widower,  or 
child  under  the  age  of  sixteen  years,  but  leaves  a  de- 
pendent or  dependents,  a  monthly  payment  shall  be 
made  to  each  dependent  equal  to  fifty  per  cent  of  the 
average  monthly  support  actually  received  by  such  de- 
pendent from  the  workman  during  the  twelve  months 
next  preceding  the  occurrence  of  the  injury,  but  the 
'  total  payment  to  all  dependents  in  any  case  shall  not 
exceed  $20.00  per  month.  If  any  dependent  is  under 
the  age  of  sixteen  years  at  the  time  of  the  occurrence 
of  the  injury,  the  payment  to  such  dependent  shall 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      229 

Wisconsin 

cease  when  such  dependent  shall  reach  the  age  of 
sixteen  years.  The  payment  to  any  dependent  shall 
cease  if  and  when,  under  the  same  circumstances,  the 
necessity  creating  the  dependency  would  have  ceased 
if  the  injury  had  not  happened. 

"If  the  workman  is  under  the  age  of  twenty-one 
years  and  unmarried  at  the  time  of  his  death,  the 
parents  or  parent  of  the  workman  shall  receive  $20.00 
per  month  for  each  month  after  his  death  until  the 
time  at  which  he  would  have  arrived  at  the  age  of 
twenty-one  years. 

"(4)  In  the  event  a  surviving  spouse  receiving 
monthly  payments  shall  die,  leaving  a  child  or  children 
under  the  age  of  sixteen  years,  the  sum  he  or  she  shall 
be  receiving  on  account  of  such  child  or  children  shall 
be  thereafter,  until  such  child  shall  arrive  at  the  age  of 
sixteen  years,  paid  to  the  child  increased  100  per  cent, 
but  the  total  to  all  children  shall  not  exceed  the  sum  of 
thirty-five  dollars  per  month." 

For  provisions  in  case  of  the  death  of  a  workman, 
from  causes  other  than  the  injury,  during  the  period 
of  total  disability,  see  §  5  (c),  in  Chapter  IX,  post, 
page  270. 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9  (3).  The  death  of  the  injured  employ^ 
shall  not  affect  the  obligation  of  the  employer  under 
subsections  1  and  2  of  this  section,  so  far  as  his  lia- 
bility shall  have  become  payable  at  the  time  of  death; 
but  the  death  shall  be  deemed  the  termination  of  dis- 
ability, and  the  employer  shall  thereupon  be  liable  for 
the  following  death  benefits  in  lieu  of  any  further  dis- 
ability indemnity: 


230    bkadbury's  workmen's  compensation  law 

Wisconsin 

"  (a)  In  case  the  deceased  employe  leaves  a  person 
or  persons  wholly  dependent  on  him  for  support,  the 
death  benefit  shall  be  a  sum  sufficient,  when  added  to 
the  indemnity  which  shall  at  the  time  of  death  have 
been  paid  or  become  payable  under  the  provisions  of 
subsection  2  of  this  section,  to  make  the  total  compen- 
sation for  the  injury  and  death  (exclusive  of  the  bene- 
fit provided  for  in  subsection  1),  equal  to  four  times  his 
average  annual  earnings;  the  same  to  be  payable,  un- 
less and  until  the  board  shall  direct  payment  in  gross, 
in  weekly  installments  corresponding  in  amount  to 
the  weekly  earnings  of  the  employ^. 

"(6)  In  case  the  deceased  employ 6  leaves  no  one 
wholly  dependent  on  him  for  support,  but  one  or  more 
persons  partially  dependent  therefor,  the  death  bene- 
fit shall  be  such  percentage  of  four  times  such  average 
annual  earnings  of  the  employe  as  the  average  annual 
amount  devoted  by  the  deceased  to  the  support  of 
the  person  or  persons  so  partially  dependent  on  him 
for  support  bears  to  such  average  annual  earnings,  the 
same  to  be  payable,  unless  and  until  the  board  shall 
direct  payment  in  gross,  in  weekly  installments  cor- 
responding in  amount  to  the  weekly  earnings  of  the 
employe;  provided  that  the  total  compensation  for 
the  injury  and  death  (exclusive  of  the  benefit  provided 
for  in  said  subsection  1)  shall  not  exceed  four  times 
such  average  annual  earnings. 

"  (c)  Liability  for  the  death  benefits  provided  for  in 
subdivisions  (a)  and  (6)  respectively  shall  only  exist 
where  the  accident  is  the  proximate  cause  of  death; 
provided  that,  if  the  accident  proximately  causes  per- 
j  manent  total  disability,  and  death  ensues  from  some 
other  cause  before  disability  indemnity  ceases,  the 
death  benefit  shall  be  the  same  as  though  the  accident 
had  caused  death;  and  provided  further  that,  if  the 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      231 
Wisconsin 

accident  proximately  causes  permanent  partial  dis- 
ability and  death  ensues  from  some  other  cause  before 
disability  indemnity  ceases,  liability  shall  exist  for 
such  percentage  of  the  death  benefits  provided  for  in 
said  subdivision  (a)  or  (6)  (as  the  case  may  be),  as 
shall  fairly  represent  the  proportionate  extent  of  the 
impairment  of  earning  capacity  caused  by  such  per- 
manent partial  disability  in  the  employment  in  which 
the  employ6  was  working  at  the  time  of  the  accident." 

The  foregoing  section  has  been  the  subject  of  much 
discussion.  The  proviso  'Hhat  if  the  accident  proxi- 
mately causes  permanent  total  disability,  and  death 
ensues  from  some  other  cause  before  disability  indemnity 
ceases,  the  death  benefit  shall  be  the  same  as  though 
the  accident  had  caused  death,"  and  the  subsequent 
portion  of  the  section  allowing  proportionate  awards 
when  there  is  partial  disability  followed  by  death 
from  some  other  cause,  leaves  a  broad  ground  for  dis- 
cussion and  interpretation.  The  result  of  these  pro- 
visions is  that  as  soon  as  a  workman  is  permanently  dis- 
abled, whether  totally  or  partially,  the  employer  must, 
if  death  follows  before  indemnity  payments  cease, 
eventually  pay  the  maximum  amounts  for  such  injury. 
The  employer  immediately  becomes  the  insurer  of  the 
life  of  the  injured  employe,  up  to  the  time  the  indem- 
nity payments  cease.  For  if  an  uninjured  employ^ 
should  die  from  some  other  cau^e  than  an  accident  in- 
cident to  his  employment  the  employer  would  of  course 
not  be  liable  at  all.  But  as  soon  as  an  employe  is  in- 
jured then  his  life  becomes  of  more  value,  from  a  com- 
pensation standpoint,  than  one  who  is  not  injured. 

"§2394-10.    1.    The  weekly  earnings  referred  to 


232    Bradbury's  workmen's  compensation  law 

Wisconsin 

in  section  2394-9  shall  be  one  fifty-second  of  the 
average  annual  earnings  of  the  employ^;  average  an- 
nual earnings  shall  not  be  taken  at  less  than  $375,  nor 
more  than  $750,  and  between  said  limits  shall  be 
arrived  at  as  follows: 

"  (a)  If  the  injured  employ 6  has  worked  in  the  em- 
ployment in  which  he  was  working  at  the  time  of  the 
accident,  whether  for  the  same  employer  or  not,  during 
substantially  the  whole  of  the  year  immediately  pre- 
ceding his  injury,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage 
or  salary  which  he  has  earned  in  such  employment 
during  the  days  when  so  employed. 

"  (6)  If  the  injured  employ^  has  not  so  worked  in 
such  employment  during  substantially  the  whole  of 
such  immediately  preceding  year,  his  average  annual 
earnings  shall  consist  of  three  hundred  times  the  aver- 
age daily  wage  or  salary  which  an  employ^  of  the  same 
class  working  substantially  the  whole  of  such  imme- 
diately preceding  year  in  the  same  or  a  similar  employ- 
ment in  the  same  or  a  neighboring  place  shall  have 
earned  in  such  employment  during  the  days  when  so 
employed. 

"(c)  In  cases  where  the  foregoing  methods  of  ar- 
riving at  the  average  annual  earnings  of  the  injured 
employ^  cannot  reasonably  and  fairly  be  applied,  such 
annual  earnings  shall  be  taken  at  such  sum  as,  having 
regard  to  the  previous  earnings  of  the  injured  em- 
ploy6,  and  of  other  employes  of  the  same  or  most 
similar  class,  working  in  the  same  or  most  similar 
employment,  in  the  same  or  a  neighboring  locality, 
I  shall  reasonably  represent  the  annual  earning  capacity 
of  the  injured  employ^  at  the  time  of  the  accident  in 
the  employment  in  which  he  was  working  at  such  time. 

"  (d)  The  fact  that  an  employe  has  suffered  a  pre- 


COMPENSATION   TO   DEPENDENTS   FOR   DEATH      233 

Wisconsin 

vious  disability,  or  received  compensation  therefor, 
shall  not  preclude  compensation  for  a  later  injury,  or 
for  death,  but  in  determining  compensation  for  the 
later  injury,  or  death,  his  average  annual  earnings 
shall  be  such  sum  as  will  reasonably  represent  his 
annual  earning  capacity  at  the  time  of  the  later  in- 
jury, in  the  employment  in  which  he  was  working  at 
such  time,  and  shall  be  arrived  at  according  to,  and 
subject  to  the  limitations  of,  the  previous  provisions 
of  this  section. 

"2.  The  weekly  loss  in  wages  referred  to  in  sec- 
tion 2394-9  shall  consist  of  such  percentage  of  the 
average  weekly  earnings  of  the  injured  employ 6,  com- 
puted according  to  the  provisions  of  this  section,  as 
shall  fairly  represent  the  proportionate  extent  of  the 
impairment  of  his  earning  capacity  in  the  employment 
in  which  he  was  working  at  the  time  of  the  accident, 
the  same  to  be  fixed  as  of  the  time  of  the  accident,  but 
to  be  determined  in  view  of  the  nature  and  extent  of 
the  injury." 


CHAPTER  IX 

COMPENSATION    FOR   TOTAL   OR   PERMANENT 
DISABILITY 

Page 

1.  Classification  of  disability 234 

2.  Total  incapacity  to  do  regular  work 235 

3.  Total  incapacity;  refusal  of  former  employer  to  supply  work 

to  injured  employ^ 235 

4.  Loss  of  one  eye 236 

5.  Complete  blindness  caused  to  eye  of  which  sight  partially 

destroyed 237 

6.  Removal  of  eye  already  blind 237 

7.  Refusal  to  undergo  surgical  operation 238 

8.  Dismissal  for  misconduct  of  workman  suffering  from  par- 

tial permanent  disability 238 

9.  Nervousness  causing  incapacity  to  work 239 

10.  Average  weekly  wages 242 


Page 

California 253  New  Hampshire 264 

Illinois 256  New  Jersey 265 

Kansas 259  Ohio 265 

Massachusetts 261  Rhode  Island 266 

Michigan 262  Washington 269 

Nevada 263  Wisconsin 272 


1.  Classification  of  disability. 

Disability,  or  incapacity,  may  be  permanent  total, 
permanent  partial,  temporary  total,  or  temporary 
partial.  Very  few  of  the  acts  attempt  to  define  the 
degrees  of  incapacity  or  disability.  In  the  Washington 
statute  permanent  total  disability  is  defined  to  mean 
the  loss  of  both  legs  or  both  arms,  or  one  leg  and  one 

234 


TOTAL   OR   PERMANENT   DISABILITY  235 

Total  incapacity;  refusal  of  work 

arm,  total  loss  of  eyesight,  paralysis  or  other  condition 
permanently  incapacitating  the  workman  from  per- 
forming any  work  at  any  gainful  occupation.  It  is  a 
well-known  fact  that  persons  who  lose  the  sight  of 
both  eyes  not  infrequently  are  able  to  earn  considerable 
sums  in  spite  of  this  distressful  calamity.  The  same 
is  true  also  as  to  those  who  have  lost  one  arm  and  one 
leg.  Some  of  the  statutes  provide  for  payments  of 
specific  sums  for  the  loss  of  a  member.  Others  leave 
the  question  of  compensation  to  depend  entirely  upon 
the  degree  of  disability  or  incapacity  in  any  particular 
case.  The  decisions  cited  hereafter  deal  with  the  ques- 
tion generally  and  will  doubtless  be  of  material  assist- 
ance in  determining  the  meaning  of  the  varying  pro- 
visions of  the  several  statutes. 

2.  Total  incapacity  to  do  regular  work. 

The  claim  of  a  seaman  for  compensation  was  re- 
ferred to  a  medical  referee  for  report.  He  certified 
that  the  man  was  fit  for  light  work  if  he  wore  a  truss, 
but  not  fit  for  work  as  a  seaman,  or  for  lifting.  On  this 
certificate  the  County  Court  judge  awarded  compensa- 
tion on  the  basis  of  total  incapacity,  and  this  decision 
was  affirmed  by  the  Court  of  Appeal.  Hendricksen  v. 
Owners  of  Stearnship  "Swanhilda''  (1911),  4  B.  W.  C. 
C.  233. 

3.  Total  incapacity;  refusal  of  former  employers  to 

supply  work  to  injured  employe. 

A  workman  with  an  injury  to  his  knee  recovered 

sufficiently  to  be  able  to  resume  work,  but  his  knee  was 

liable  to  break  down  at  any  time,  and  did  in  fact  break 

down.    After  a  considerable  time,  during  which  he  did 


236     Bradbury's  workmen's  compensation  law 

Loss  of  eye 

not  receive  compensation,  he  took  proceedings,  and 
the  County  Court  judge,  on  the  assumption  that  his 
former  employers  were  going  to  find  him  work,  awarded 
one  penny  per  week.  The  former  employers  refused  to 
find  him  work  and  he  was  unable  to  obtain  any  from 
anyone  else  owing  to  his  having  had  an  accident,  and 
to  the  chance  of  his  breaking  down.  It  was  held  that 
he  was  entitled  to  full  compensation.  Thomas  v.  Fair- 
bairn,  Lawson  &  Co.  (1911),  4  B.  W.  C.  C.  195. 

4.  Loss  of  one  eye. 

The  employer  of  a  workman  who  had  lost  an  eye,  and 
who  had  been  in  receipt,  first  of  full,  and  subsequently 
of  partial  compensation,  having  proposed  to  terminate 
the  weekly  payments,  a  mutual  submission  was  made 
to  a  medical  referee  under  Schedule  I  (15).  The 
medical  referee  having  reported  that  the  workman  was 
"as  fit  as  any  other  one-eyed  man"  to  resume  work 
underground,  his  employers  applied  to  end  the  com- 
pensation as  from  the  date  of  the  medical  referee's 
report.  It  was  held  that  the  miner  should  be  permitted 
to  present  proof  showing  that  his  wage-earning  capacity 
was  not  as  great  in  his  present  condition  as  it  would 
have  been  if  he  had  the  use  of  both  eyes.  Arnott  v.  Fife 
Coal  Co.  (1911),  48  Scotch  L.  R.  828;  4  B.  W.  C.  C.  361. 

A  miner  lost  one  eye  by  an  accident.  The  medical 
referee  to  whom  the  matter  had  been  referred,  reported 
that  he  was  fit  for  work.  The  employer  thereupon 
made  application  to  have  the  compensation  ended  or 
diminished.  At  the  hearing  the  workman  maintained 
that  since  the  date  of  the  referee's  examination  he  had 
lost  the  use  of  his  other  eye  owing  to  the  accident,  and 
that  he  was  unfit  for  his  work.    The  arbitrator  found 


TOTAL   OR   PERMANENT   DISABILITY  237 

Removal  of  eye  already  blind 

that  the  miner  was  totally  incapacitated  but  that  it 
was  not  proved  that  his  blindness  in  the  second  eye 
was  due  to  the  effects  of  the  accident,  and  held  that  the 
onus  of  proving  that  the  supervening  incapacity  was 
due  to  the  accident  lay  upon  the  miner.  The  arbitrator 
diminished  the  payments.  It  was  held  that  the  onus 
was  upon  the  miner  and  had  not  been  discharged. 
M'Ghee  v.  Summerlee  Iron  Co.  (1911),  48  Scotch  L.  R. 
807;4B.W.  C.  C.424. 

Where  a  miner  in  the  course  of  his  employment  re- 
ceived an  injury  which  made  his  right  eye  almost  use- 
less and  his  left  eye  was  already  of  little  use  by  reason 
of  a  disease  common  to  miners  it  was  held  that  he  was 
entitled  to  compensation.  Lee  v.  William  Baird  &  Co. 
(1908),  45  Scotch  L.  R.  717;  1  B.  W.  C.  C.  34. 

5.  Complete  blindness  caused  to  eye  of  which  sight 

partially  destroyed. 
A  workman  had  received  an  injury  to  his  eye  ten 
years  before,  so  that  sight  was  partially  destroyed,  but 
he  had  some  use  of  his  eye.  While  in  this  condition  he 
was  struck  in  the  eye  by  a  horse's  tail  and  inflammation 
set  in.  The  eye  was  removed  in  the  hospital.  Com- 
pensation was  awarded  on  the  ground  that  incapacity 
for  work  was  caused  by  the  second  injury.  Martin  v. 
Barneti  (1910),  3  B.  W.  C.  C.  146. 

6.  Removal  of  eye  already  blind. 

As  a  result  of  an  accident  years  ago  a  workman  was 
blind  in  one  eye,  but  the  infirmity  was  unknown  to  his 
employer  and  he  was  fully  able  to  work.  As  a  result  of 
a  new  accident  the  blind  eye  had  to  be  removed  and  the 
workman  could  no  longer  conceal  his  infirmity.     On 


238     Bradbury's  workmen's  compensation  law 

Dismissal  for  misconduct 

recovering  from  the  effects  of  the  operation  he  was 
entirely  unable,  owing  to  the  deformity  which  was  now 
obvious,  to  obtain  work  either  from  his  old  employer  or 
from  anyone  else.  He  claimed  that  the  accident  had 
thus,  in  effect,  incapacitated  him  for  work.  The  County 
Court  judge  held  that  any  incapacity  was  due  to  the 
accident  which  had  blinded  the  eye  years  ago  and  de- 
cided that  the  workman  was  not  entitled  to  com- 
pensation. This  decision  was  affirmed  by  the  Court 
of  Appeal.  Ball  v.  William  Hunt  &  Sons  (1911),  104 
L.  T.  327;  4  B.  W.  C.  C.  225.  This  case  was  reversed 
in  the  House  of  Lords,  but  is  not  yet  reported.  It  was 
remanded  to  the  County  Court  to  determine  the  disa- 
bility. 

7.  Refusal  to  undergo  surgical  operation.^ 

Incapacity  may  none  the  less  result  from  an  injury, 
should  the  workman  refuse  to  undergo  a  surgical  opera- 
tion, which,  although  attended  with  risk,  would  prob- 
ably be  successful.  Rothwell  v.  Davies  (1903),  5  W.  C. 
C.  141. 

8.  Dismissal  for  misconduct  of  workman  suffering 

from  partial  permanent  disability. 

By  an  accident  a  workman  lost  the  use  of  his  left  eye. 
His  employers,  under  a  registered  agreement,  made  him 
a  weekly  payment  during  incapacity.  He  resumed 
work  at  his  former  rate  of  wages,  but  was  subsequently 
dismissed  for  alleged  misconduct.  On  apphcation  by 
the  employers  to  review  the  agreement,  the  County 
Court  judge  reduced   the  weekly  payments   to  one 

1  See  Chapter  II,  especially  the  subdivision  "Arising  out  of  and 
iu  the  Course  of  the  Employment." 


TOTAL   OR   PERMANENT   DISABILITY  239 

Nervousness  causing  incapacity  to  work 

penny,  on  the  ground  that  the  workman  had  brought 
about  his  own  dismissal.  On  appeal  to  the  Court  of 
Appeal  it  was  held,  that  although,  when  a  workman 
employed  at  an  adequate  rate  of  wages,  vacates  his 
position  by  reason  of  his  own  misconduct,  he  is  not 
entitled  at  once  to  call  upon  his  employers  for  com- 
pensation, yet  one  act  of  misconduct  does  not  neces- 
sarily deprive  him  forever  of  the  right  to  compensation. 
W.  White  and  Sons  v.  Harris  (1910),  4  B.  W.  C.  C.  39. 
A  workman  who  was  partially  incapacitated  by  an 
accident  which  caused  an  injury  of  a  permanent  nature 
was  employed  in  another  capacity  where  his  wages  were 
higher  than  they  had  been  before  the  accident.  From 
this  employment  he  was  dismissed  by  reason  of  his  own 
misconduct.  On  proceedings  for  compensation  under 
the  Act  it  was  held  that  the  workman's  incapacity  was 
due  to  his  own  misconduct  and  he  was  not  entitled  to  a 
substantial  award.  Upon  the  consent  of  the  employer 
an  award  was  made  of  one  penny  a  week  for  the  purpose 
of  allowing  the  proceedings  to  stand  without  being  en- 
tirely terminated.  Hill  v.  Ocean  Coal  Co.  (1909),  3  B. 
W.  C.  C.  29. 

9.  Nervousness  causing  incapacity  to  work.^ 

Where  a  personal  injury  is  caused  to  a  workman  by 
accident,  his  right  to  claim  compensation  continues  so 
long  as  the  nervous  effects  remain,  if  they  produce 
total  or  partial  incapacity  for  work.  Eaves  v.  Blaen- 
clydach  Colliery  Co.  (1909),  100  L.  T.  747;  2  B.  W.  C.  C. 
329. 

1  See  Chapter  II,  especially  the  subdivisions  "What  is  an  Acci- 
dent," especially  pp.  62  et  seq.,  and  "Arising  out  of  and  in  the 
Course  of  the  Employment." 


240     Bradbury's  workmen's  compensation  law 

Nervousness  causing  incapacity  to  work 

A  relief  stamper  crushed  her  finger,  and  after  a 
period  of  time  had  physically  recovered  from  her  injury, 
but  dreaded  to  return  to  her  old  work  for  fear  she 
should  again  injure  herself.  It  was  held  that  the  total 
incapacity  for  work  had  ceased  and  an  award  of  Id. 
a  week  was  all  she  was  entitled  to  have.  Pimms  v. 
Pearson  (1909),  2  B.  W.  C.  C.  489. 

Although  nervousness  may  be  the  result  of  an  acci- 
dent if  it  is  such  as  an  average  reasonable  man  could 
overcome  it  is  not  sufficient  ground  for  compensation. 
Turner  v.  Brooks  &  Doxey  (1909),  3  B.  W.  C.  C.  22. 
In  the  last-mentioned  case  the  workman  had  suffered 
an  injury  of  a  not  very  serious  nature.  He  returned  for 
a  short  time  and  then  went  to  a  convalescent  home  and 
after  that  returned  to  work  and  continued  in  it  for  a 
period  of  eighteen  months.  Then  he  complained  that 
because  of  nervousness  due  to  the  accident  he  was 
unable  to  work.  The  County  Court  judge  denied 
compensation  and  this  decision  was  affirmed  by  the 
Court  of  Appeal.  Among  other  things  the  County 
Court  judge  said:  ''It  is  one  of  the  most  difficult  tasks 
we  have  in  the  working  of  the  Act  dealing  fairly  with 
employers  and  men,  to  deal  with  cases  which  are  par- 
tially neurasthenic,  and  where  the  man  does  not  desire 
to  go  back  to  work  for  a  variety  of  reasons  which  have 
really  nothing  much  to  do  with  the  original  accident. 
I  make  a  finding  that  the  man  if  he  desires  further  rest 
can  have  it  at  his  own  risk.  I  think  that  the  applicant 
is  fit  for  his  work,  and  that  his  refusal  to  continue 
working  is  due  to  nervousness  which  an  average  rea- 
sonable man  would  overcome.  *  *  *  I  cannot  help 
saying  that  these  neurasthenic  claims  are  on  the  in- 
crease.   I  know  that  the  better  class  of  working  men 


TOTAL   OR   PERMANENT   DISABILITY  241 

Nervousness  causing  incapacity  to  work 

will  take  the  same  view  that  I  do  of  them.  They  are 
not  good  for  the  general  body  of  the  working  community 
at  all.  It  is  not  good  that  these  neurasthenic  cases 
should  be  continually  up  before  the  country."  The 
Court  of  Appeal  drew  a  distinction  between  this  de- 
cision and  the  case  of  Eaves  v.  Blaenclydach  Colliery  Co. 
(1909),  2  K.  B.  73;  2  B.  W.  C.  C.  329. 

An  applicant  for  compensation  was  working  in  a 
loft  when  a  plank  on  the  floor  broke  and  he  hurt  his 
leg.  As  he  was  unable  to  walk  he  was  taken  to  the 
hospital  and  was  put  under  a  high  frequency  electrical 
treatment,  which  was  so  efficacious  that  in  five  minutes 
the  man  seemed  to  be  completely  cured  and  was  able 
to  walk  about.  He  was  discharged  as  cured,  but  when 
he  went  back  home  he  became  as  bad  as  ever.  Again 
he  returned  to  the  hospital  and  had  the  electrical  treat- 
ment administered,  with  the  result  that  in  a  few  minutes 
again  he  was  apparently  as  well  as  ever.  Within  a  few 
days  after  returning  home  he  once  more  broke  down 
and  became  as  bad  as  before.  The  man  alleged  that 
he  was  unable  to  do  any  work.  A  physician  giving 
evidence  for  the  employ^  said  he  did  not  think  Osband 
was  malingering.  He  was  suffering  from  traumatic 
hysterical  paraplegia,  and  was  unfit  to  do  any  work. 
Witness  had  told  the  man  that  a  cure  might  be  effected 
if  his  house  suddenly  caught  fire,  because  he  would 
then  probably  make  a  rush  for  the  stairs  and  go  down 
all  right.  The  County  Court  judge  decided  that  the 
man  was  suffering  from  traumatic  hysterical  para- 
plegia, and  that  it  was  not  an  imaginary  paralysis, 
because  he  was  not  suffering  from  any  paralysis  at  all. 
That  his  condition  was  one  of  hysteria,  and,  in  the 
opinion  of  himself  and  the  medical  referee  the  man 
16 


242     Bradbury's  workmen's  compensation  law 

Average  weekly  wages 

could  not  exercise  his  will  to  commence  work.  He  was, 
therefore,  entitled  to  compensation.  Osband  v.  Tabor 
(1912),  ''The  Policy  Holder,"  April  10,  1912,  p.  296. 

10.  "  Average  weekly  wages." 

Some  of  the  statutes  contain  minute  directions  as  to 
the  manner  of  arriving  at  the  ''average"  wages  or 
earnings,  which  are  to  form  the  basis  of  the  compensa- 
tion payments.  Others  contain  no  specifications  what- 
soever on  this  point. 

In  the  Nevada  statute  there  is  a  variance  from  the  two 
methods  noted  above.  The  act  of  the  last-mentioned 
State  speaks  of  the  workman's  "average  weekly  earn- 
ings in  such  employment  during  the  previous  twelve 
months  if  he  has  been  so  long  employed,  but  if  not, 
then  for  any  less  period  during  which  he  has  been  in 
the  employment  of  the  same  employer." 

It  is  obvious  that  the  different  provisions  of  the  va- 
rious acts  afford  much  opportunity  for  judicial  construc- 
tion and  interpretation.  The  cases  cited  hereinafter 
show  the  general  rules  of  construction  which  have  been 
adopted  by  the  courts  under  the  British  and  Canadian 
Compensation  Acts. 

Intermittent  employment  due  to  strikes  and  other  causes. 
Intervals  from  work  not  amounting  to  a  break  in  the 
employment  should  not  be  excluded  in  calculating 
average  weekly  earnings.  If  a  man  has  been  employed 
for  twelve  months,  but  has  taken  odd  weeks  off,  the 
total  amount  of  his  earnings  should  be  divided  by 
fifty-two  in  order  to  calculate  his  average  weekly 
earnings.  Keast  v.  The  Barrow  Haematite  Steel  Co. 
(1899),  1  W.  C.  C.  99.  If  there  has  been  a  break  in  the 
employment,  for  example,  a  strike,  during  the  previous 


TOTAL   OR   PERMANENT   DISABILITY  243 

Average  weekly  wages 

twelve  months,  the  period  of  calculation  in  assessing 
the  average  weekly  earnings  is  the  period  of  the  new 
employment.  The  test  of  whether  there  has  been  a 
break  in  the  employment  is  whether  the  relationship 
of  master  and  servant  has  been  continuous  or  not;  a 
mere  interval  in  the  time  the  contract  of  service  or  work 
is  running  is  not  sufficient.  Jones  v.  Ocean  Coal  Co. 
(1899),  80  L.  T.  582;  1  W.  C.  C.  94.  Where  there  is  a 
break  in  the  employment,  which  amounts  to  a  deter- 
mination of  the  old  employment,  the  period  over  which 
the  average  weekly  earnings  should  be  assessed  is  that 
immediately  preceding  the  injury.  Appleby  v.  The 
Horseley  Co.  &  Lovatt  (1899),  80  L.  T.  853;  1  W.  C.  C. 
103.  If  a  man  is  away  from  work  for  eleven  weeks  and 
returns  without  any  fresh  engagement,  having  left  his 
tools  on  the  job,  there  is  evidence  of  a  break  in  the 
employment.  Hewlett  v.  Hepburn,  2  W.  C.  C.  123. 
Where  during  the  twelve  months  prior  to  the  accident 
the  mills,  in  which  the  applicant  worked,  had  been  on 
short  time  owing  to  slackness  of  trade,  and  the  applicant 
had  not  always  worked  a  full  week,  it  was  held  that 
she  was  entitled  to  the  average  weekly  earnings  which 
she  had  actually  earned  during  the  preceding  twelve 
months.  Kelly  v.  York  Street  Flax  Spinning  Co.  (1909), 
43  Irish  L.  T.  J.  81;  2  B.  W.  C.  C.  493.  In  the  last- 
mentioned  case  it  appeared  that  in  previous  years  the 
applicant  had  worked  and  earned  more  than  she  had 
during  the  last  twelve  months,  but  the  larger  earnings 
were  not  taken  into  consideration  in  fixing  the  com- 
pensation. 

In  ascertaining  the  average  weekly  earnings  of  a  work- 
man, the  recognized  and  known  incidents  of  his  em- 
ployment must  be  taken  into  consideration.   Therefore 


244    Bradbury's  workmen's  compensation  law 

Average  weekly  wages 

where  the  injured  workman  was  retained  in  the  employ- 
ment during  the  whole  year,  but  owing  to  the  fact  that 
the  work  was  discontinuous,  he  could  not  have  worked 
for  more  than  thirty-six  weeks  during  the  twelve  months 
preceding  the  accident,  fourteen  weeks  having  been 
taken  up  by  stoppages  in  the  ordinary  course  of  work, 
and  two  weeks  being  recognized  holidays,  and  he  did 
not  in  fact  work  for  more  than  thirty-three  weeks,  it 
was  held  that  the  basis  of  the  compensation  was  36/52 
of  his  earnings  during  the  thirty-three  weeks  he  had 
actually  worked.  (House  of  Lords),  Anslow  v.  Cannock 
Chase  Colliery  Co.  (1909),  100  L.  T.  786;  2  B.  W.  C.  C. 
365.  As  to  the  method  of  arriving  at  the  average 
weekly  earnings  of  a  workman,  Moulton,  L.  J.,  said 
in  the  case  of  Perry  v.  Wright  (1907),  98  L.  T.  327;  1 
B.  W.  C.  C.  351,  at  page  356  of  the  last-mentioned 
report : 

"The  object  of  the  schedule  is  to  arrive  at  a  fair 
estimate  of  what  the  workman  was  earning  at  the  date 
of  the  accident.  But  to  regard  this  as  rigidly  deter- 
mined by  the  rate  at  which  he  was  earning  remunera- 
tion at  the  precise  moment  of  the  accident  would  be  to 
adopt  a  principle  which  would  often  lead  to  unfair 
results.  The  remuneration  which  the  workman  was 
earning  at  that  particular  moment  might  be  abnor- 
mally exaggerated  or  diminished  by  reason  of  temporary 
and  exceptional  causes  which  would  make  it  an  in- 
accurate measure  of  the  workman's  normal  earnings. 
The  legislature,  therefore,  by  the  use  of  the  word 
'average'  indicates  that  the  rate  of  remuneration  is  to 
be  arrived  at  by  taking  into  consideration  the  earnings 
during  an  adequate  length  of  time  previous  and  up  to 
the  time  of  the  accident  for  the  purpose  of  obtaining 


TOTAL   OR   PERMANENT  DISABILITY  245 

Average  weekly  wages 

the  average  remuneration  during  that  period,  rightly 
deeming  that  this  will  more  fairly  represent  the  rate 
of  remuneration  which  the  workman  was  then  receiv- 
ing than  would  any  method  of  estimating  the  rate  of 
remuneration  solely  based  on  the  state  of  circumstances 
prevailing  at  the  precise  moment  of  the  accident." 
The  learned  judge  then  discusses  the  provisions  of  the 
British  Compensation  Act  which  are  not  entirely  the 
same  as  those  found  in  the  acts  of  the  different  States, 
and  lays  down  the  principle  that  where  a  certain  length 
of  time  is  taken  in  computing  the  average  wage  that 
the  weeks  when  there  was  an  enforced  idleness  by  reason 
of  holidays  or  breakage  in  machinery,  ought  to  be 
considered  as  part  of  the  time  employed  even  though 
the  workman  did  not  receive  anything  for  that  time 
and  the  average  wage  reduced  accordingly. 

An  employe  had  worked  for  the  same  employer 
more  than  twelve  months.  The  total  of  his  wages  for 
the  twelve  months  before  the  accident  were  £83,  2s., 
Id.,  but  during  the  year  there  had  been  stoppages: 

1st.  In  consequence  of  a  canal  having  burst; 

2d.  During  the  wake  week; 

3d.  By  reason  of  accidents  to  machinery; 

4th.  On  bank  holidays. 

The  arbitrator  divided  the  total  sum  earned  by 
fifty-two  for  the  purpose  of  arriving  at  the  average 
weekly  earnings  of  the  workman  in  question.  It  was 
held  on  appeal  that  this  was  error  and  that  the  same 
should  have  been  divided  by  the  number  of  weeks  or 
parts  of  weeks  actually  worked.  Bailey  v.  Kenworthy 
(1906),  1  B.  W.  C.  C.  371. 

Adding  compensation  from  all  sources,  including  rent, 
etc.    A  stoker  on  a  merchant  vessel  was  also  a  stoker 


246    Bradbury's  workmen^s  compensation  law 

Average  weekly  wages 

in  the  Naval  Reserve  and  his  position  in  the  Naval 
Reserve  entitled  him  to  draw  £6  a  year.  He  met  with 
an  accident  which  disabled  him  from  work,  and  it  was 
held  that  in  estimating  the  average  weekly  earnings, 
the  sum  which  he  received  as  stoker  in  the  Naval  Re- 
serve must  be  added  to  the  wages  received  by  him  as 
a  stoker  in  the  merchant  service.  Brandy  v.  Owners  of 
S.  S.  ''Raphael"  (1910),  4  B.  W.  C.  C.  6,  aff'd  by 
House  of  Lords  (1911),  4  B.  W.  C.  C.  307. 

The  remuneration  of  a  ship's  steward  who  was 
drowned  was  found  by  the  County  Court  judge  to  be 
£232.  He  was  entitled,  in  addition,  to  "extra  wages," 
which,  however,  only  became  payable  on  the  happen- 
ing of  certain  events,  which  had  in  fact  happened,  and 
also  to  profits  on  the  sale  of  whisky.  The  employers 
contended  that  such  extra  payments  should  be  taken 
into  consideration  and  that  if  they  amounted  to  more 
than  £18  the  total  remuneration  would  exceed  £250, 
in  which  case  the  dependents  would  be  excluded  from 
the  benefits  of  the  Act.  The  County  Court  judge 
declined  to  take  such  sums  into  consideration  and 
awarded  compensation.  It  was  held  on  appeal  to  the 
Court  of  Appeal  of  England  that  such  extra  payments 
must  be  taken  into  consideration  and  that  the  case 
must  go  back  to  the  County  Court  judge  to  ascertain, 
the  best  way  he  could,  their  value.  Skailes  v.  Blue 
Anchor  Line  (1910),  4  B.  W.  C.  C.  16. 

In  estimating  the  compensation  to  which  the  de- 
pendents of  a  workman  killed  by  accident  are  entitled 
when  such  workman  has  worked  continuously  for  three 
years  for  the  same  employer,  no  account  can  be  taken 
of  the  wages  earned  by  him  under  concurrent  con- 
tracts with  other  employers.     Buckley  v.  London  & 


OTAL   OR   PERMANENT  DISABILITY  247 

Average  weekly  wages 

India  Docks  (1909),  127  L.  T.  J.  521;  2  B.  W.  C.  C. 
327. 

The  value  of  clothing  received  as  part  of  the  emolu- 
ments of  service  is  part  of  the  workman's  (railway 
guard)  earnings.  Great  Northern  Ry.  Co.  v.  Dawson 
(1905),  92  L.  T.  145;  7  W.  C.  C.  114.  Where  a  seaman 
in  claiming  compensation  added  the  amount  of  his 
wages  to  the  amount  it  would  cost  him  for  food  and 
lodging,  and  his  employers  contended  that  the  food 
did  actually  cost  considerably  less  than  the  amount 
claimed  by  the  seaman,  it  was  held  in  upholding  an 
award  of  the  County  Court  judge  that  the  proper 
amount  in  this  case  was  the  wages  plus  the  actual 
cost  to  the  employer  of  the  food  and  lodging.  It  was 
stated  further  that  the  cost  of  food  and  lodging  to  the 
employer  is  not  in  every  case  the  test  of  the  value  of 
the  same  to  the  workman,  where  compensation  is 
claimed.  Rosenquist  v.  Bowring  &  Co.  (1908),  98  L. 
T.  773;  1  B.  W.  C.  C.  395.  Where  a  seaman  receives 
wages  and  food  as  part  of  his  remuneration,  the  test 
in  ascertaining  the  amount  of  his  average  wages  is  not 
what  he  saved  by  receiving  the  food,  but  what  was  the 
actual  worth  to  him  of  the  reasonable  food  supplied 
by  the  employers.  Dothie  v.  MacAndrew  &  Co.  (1908), 
98  L.  T.  495;  1  B.  W.  C.  C.  308.  Deductions  from 
wages  for  articles  supplied  which  are  part  of  the  nec- 
essary equipment  of  a  workman  from  part  of  his  earn- 
ings. Ahram  Coal  Co.  v.  Southern  (1903),  5  W.  C.  C. 
125.  Occasional  and  fixed  allowances  for  board  and 
lodging,  when  away  from  home,  are  included  in  earn- 
ings.   Sharpe  v.  Midland  Ry.  Co.  (1903),  88  L.  T.  545; 

5  W.  C.  C.  128,  aff'd,  Midland  Ry.  Co.  v.  Sharpe  (1904), 

6  W.  C.  C.  119.     Deductions  from  wages  for  things 


248     Bradbury's  workmen's  compensation  law 

Average  weekly  wages 

supplied  to  a  workman  necessary  for  the  performance 
of  his  work,  for  example,  lamp  oil  supplied  to  a  miner, 
do  not  reduce  the  amount  of  his  earnings.  Houghton 
V.  Sutton  Heath  and  Lea  Green  Collieries  Co.  (1900), 
3  W.  C.  C.  173. 

The  rent  of  a  cottage  belonging  to  the  employer 
and  occupied  by  the  workman,  may  properly  be  de- 
ducted from  the  amount  of  compensation  awarded 
under  an  agreement  between  the  employer  and  em- 
ploy4.  Brown  v.  The  South  Eastern  &  Chatham  Rail- 
way Co.^s  Managing  Committee  (1910),  3  B.  W.  C.  C. 
428. 

Regular  employment  at  a  fixed  wage  on  two  fixed 
nights  in  each  week  is  continuous  employment  for  the 
purpose  of  determining  the  number  of  weeks  for  which 
the  weekly  earnings  are  to  be  averaged.  If,  in  addition 
to  such  fixed  wage,  other  wages  are  earned  from  the 
same  employer  for  irregular  and  uncertain  employ- 
ment, these  wages  are  not  to  be  taken  into  account  in 
calculating  the  average  weekly  earnings.  Hathaway 
V.  Argus  Printing  Co.  (1900),  3  W.  C.  C.  177. 

An  applicant  was  injured  at  a  laundry  where  she 
earned  7s.  a  week.  She  also  received  from  another 
person  3s.  a  week  for  teaching  children  to  play  the 
piano  at  their  own  home,  where  she  went  for  that  pur- 
pose every  Saturday.  The  County  Court  judge  found 
that  the  applicant's  arrangement  for  teaching  the 
piano  was  not  a  "contract  of  service,"  and  that  there- 
fore the  applicant  had  not  entered  into  concurrent 
contracts  of  service  within  the  meaning  of  Schedule  I 
(2)  (6),  and  he  awarded  the  applicant  compensation 
on  the  basis  of  7s.  a  week  received  for  work  at  the 
laundry.     It  was  held  on  appeal  that  the  question 


TOTAL   OR   PERMANENT  DISABILITY  249 

Average  weekly  wages 

whether  the  appHcant,  in  her  arrangement  for  teaching 
the  piano,  was  a  workman  under  a  contract  of  service 
was  a  question  of  fact.  There  is  a  dictum  in  the  same 
case  that  an  usher  in  a  private  school,  or  a  teacher,  or 
a  nursery  governess,  would,  under  ordinary  circum- 
stances, be  entitled  to  claim  the  benefit  of  the  Act. 
Simmon  v.  The  Heath  Laundry  Co.  (1910),  102  L.  T. 
210;  3  B.  W.  C.  C.  200. 

''Tips''  as  part  of  earnings.  In  calculating  a  work- 
man's average  weekly  earnings,  where  the  evidence  is 
that  he  habitually  received  certain  tips  to  the  knowl- 
edge of  his  employers  it  was  held  that  the  court  was 
entitled  to  take  these  tips  into  consideration,  although 
they  were  given  for  services  outside  his  ordinary  em- 
ployment. Knott  V.  Tingle  Jacobs  &  Co.  Q910),  4  B. 
W.  C.  C.  55. 

A  man  in  respect  of  whose  death  compensation  was 
claimed,  had  been  employed  as  a  waiter  on  a  dining 
car.  In  addition  to  his  pay  and  meals  he  received  from 
the  railway  company  gratuities  or  tips  from  passengers 
averaging  from  10s.  to  12s.  a  week.  It  was  held  that 
the  tips  were  part  of  the  earnings  of  the  deceased. 
Penn  v.  Spiers  &  Pond  (1908),  1  B.  W.  C.  C.  401. 

Absence  of  agreement  as  to  rate  of  wages.  Where  no 
rate  of  wages  has  been  expressly  stipulated  for  and  no 
payment  made,  an  agreement  may  be  implied  for  the 
usual  rate  of  wages  for  that  particular  class  of  work,  in 
that  locality  at  that  time.  Jones  v.  Walker  (1899),  1 
W.  C.  C.  142. 

Employment  for  less  than  a  week.  Where  a  workman 
has  worked  less  than  one  week  he  is  only  entitled  to  a 
moiety  of  what  he  has  actually  earned.  Peers  v.  Astley 
and  Tyldesley  Collieries  Co.  (1901),  3  W.  C.  C.  185. 


250    Bradbury's  workmen's  compensation  law 

Average  weekly  wages 

Where  a  workman  has  worked  for  less  than  one 
week  he  is  entitled  to  a  moiety  of  what  he  would  have 
earned  if  he  had  continued  to  work  for  the  whole  week. 
Greaves  v.  Mulliners  (1901),  3  W.  C.  C.  189.  Where  a 
man  worked  eleven  hours  one  day  at  the  rate  of  6d. 
per  hour,  and  then  was  injured  it  was  held  that  the 
basis  of  compensation  was  the  actual  amount  earned 
and  he  was  awarded  one-half  of  5s.  Qd.,  or  2s.  9d. 
per  week.  Case  v.  Colonial  Wharves  (1905),  8  W.  C.  C. 
114. 

Actual  earnings  not  "usual"  wages  paid  in  that  em- 
ployment. The  weekly  earnings  of  an  injured  workman 
are  what  he  has  earned  in  that  employment  and  not 
the  ordinary  standard  weekly  wage  earned  by  others 
engaged  in  a  similar  occupation.  Bartlett  v.  Tutton  & 
Sons  (1901),  85  L.  T.  531;  4  W.  C.  C.  133.  An  ar- 
bitrator found  that  casual  shipwrights  (though  the 
standard  union  rate  of  wages  for  both  permanent  and 
casual  shipwrights  is  the  same  per  day),  are  not  in  the 
same  grade  as  regular  shipwrights,  and  that  the  aver- 
age earnings  of  the  former  are  much  less  than  the  latter. 
He  further  found  that  the  weekly  earnings  of  a  casual 
shipwright  at  the  place  in  question,  had  for  the  past 
twelve  months,  averaged  30s.  and  gave  compensation 
to  the  dependents  of  a  casual  shipwright  on  this  basis. 
This  ruling  was  sustained  on  appeal.  Cain  v.  Leyland 
&  Co.  (1906),  1  B.  W.  C.  C.  368.  Where  a  workman 
was  paid  by  the  hour  and  earned  £1,  18s.  6rf.  from 
December  13  to  December  20,  and  £1,  4s.  6d.  from 
December  20  to  December  27  (Christmas  week)  it  was 
held  that  the  average  of  the  two  weeks  must  be  taken 
in  arriving  at  the  basis  of  compensation.  Faircloth  v. 
Waring  &  Gillow  (1906),  8  W.  C.  C.  99. 


TOTAL  OR  PERMANENT  DISABILITY  251 

Average  weekly  wages 

Change  in  rate  of  wages  during  year.  The  period  of 
employment  for  assessing  average  weekly  earnings  is 
not  affected  by  a  change  in  the  character  of  the  em- 
ployment and  a  consequent  change  in  the  rate  of  wages. 
When  during  employment  for  twelve  months  there 
has  been  a  change  in  the  rate  of  wages,  the  average 
must  be  taken  on  the  earnings  for  the  whole  twelve 
months,  and  not  on  the  earnings  at  the  time  of  the 
accident.  Price  v.  Marsden  &  Sons  (1899),  80  L.  T.  15; 
1  W.  C.  C.  108. 

The  word  "average"  in  the  expression  "average 
weekly  earnings"  is  only  applicable  where  the  weekly 
earnings  differ  in  amount.  Lysons  v.  Andrew  Knowles 
&  Sons;  Stuart  v.  Nixon  &  Bruce  (1901),  3  W.  C.  C.  1. 
Fluctuations  in  the  value  of  labor  should  be  taken  into 
consideration  in  determining  the  amount  of  compen- 
sation.   James  v.  Ocean  Coal  Co.  (1904),  6  W.  C.  C.  128. 

Basis  of  compensation  when  workman  employed  in 
different  grades.  A  workman  was  employed  by  the 
same  employer  for  some  time  as  a  boilermaker  and  for 
some  time  as  a  laborer,  and  he  met  with  an  accident 
when  employed  as  a  laborer.  The  arbitrator,  in  cal- 
culating his  average  weekly  earnings  took  into  account 
the  amount  which  the  workman  had  earned  as  a  boiler- 
maker  and  awarded  him  compensation  on  the  average 
wage  thus  ascertained.  It  was  held  that  the  compensa- 
tion must  be  based  on  the  wages  the  workman  was 
earning  in  the  grade  of  employment  in  which  he  met 
with  the  accident  and  that  it  was  error  for  the  ar- 
bitrator to  reckon  the  man's  wages  as  a  boilermaker. 
Bahcock  &  Wilcox  v.  Young  (1911),  48  Scotch  L.  R. 
298;  4  B.  W.  C.  C.  367.  Same  principle.  Perry  v. 
Wright  (1908),  98  L.  T.  327;  1  B.  W.  C.  C.  351.    In  the 


252    Bradbury's  workmen's  compensation  law 

Average  weekly  wages 

last-mentioned  case  the  principle  was  established 
where  a  man  changes  from  one  grade  of  work  to  another 
that  ''any  step  up  or  step  down  from  one  grade  to 
another  is  to  be  regarded  as  commencing  a  fresh  em- 
ployment," in  computing  the  wages  upon  which  com- 
pensation is  to  be  based. 

An  arbitrator  found  that  no  definite  grades  existed 
among  casual  dock  laborers,  but  that  the  men  formed 
themselves  into  grades  of  good  and  bad  workmen,  the 
good  earning  about  30s.  a  week  and  the  bad  about 
15s.  a  week,  and  that  the  workman  whose  compensa- 
tion was  in  question  belonged  to  the  latter  class.  On 
appeal  it  was  held  that  this  was  a  misdirection  as  to 
the  meaning  of  the  word  "grade."  It  was  held  that  the 
word  does  not  involve  or  depend  upon  individual 
characteristics,  and  that  good  and  bad  workmen  are 
not  two  grades.  The  case  was  remitted  to  an  arbitrator 
to  determine  whether  casual  dock  laborers  form  a  dis- 
tinct grade  in  the  hierarchy  of  labor,  and  if  so  what  are 
the  average  wages  of  the  grade.  Perry  v.  Wright;  Cain 
V.  Leyland  &  Co.;  Bailey  v.  Kenworthy;  Gough  v.  Craw- 
shay  Brothers  (1907),  98  L.  T.  327;  1  B.  W.  C.  C.  351. 

A  workman,  after  injury  for  which  he  was  paid  com- 
pensation, resumed  work  in  a  different  department,  at 
a  lower  wage.  He  was  killed  in  this  latter  employment, 
and  the  compensation  was  assessed  on  the  wages  of 
the  employment  in  which  he  was  engaged  when  he  was 
killed.  The  Court  of  Appeal  held  that  the  question  was 
one  of  fact  for  the  County  Court  judge,  and  as  there 
was  evidence  to  support  it,  the  court  could  not  inter- 
fere with  the  decision.  The  decision  was  made  on  the 
ground  that  there  had  been  a  break  in  the  continuity 
of  the  employment  of  the  workman  and  compensation 


TOTAL   OR   PERMANENT   DISABILITY  253 

California 

was  therefore  assessed  upon  the  basis  of  the  earnings  of 
the  man  in  the  second  employment.  Williams  v.  The 
Wynnstay  Collieries  (1910),  3  B.  W.  C.  C.  473. 

In  many  of  the  statutes  which  follow  the  provisions 
for  permanent  and  temporary  disability  have  been  so 
intermingled  that  it  has  not  always  been  possible  to 
separate  them.     They  are  shown  as  cross  references. 

CALIFORNIA 
(L.  1911,  c.  399) 

"§8  (2).  If  the  accident  causes  disability,  an  in- 
demnity which  shall  be  payable  as  wages  on  the  eighth 
day  after  the  injured  employ^  leaves  work  as  the  re- 
sult of  the  injury,  and  weekly  thereafter,  which  weekly 
indemnity  shall  be  as  follows: 

"(a)  If  the  accident  causes  total  disability,  sixty- 
five  per  cent  of  the  average  weekly  earnings  during 
the  period  of  such  total  disability;  provided,  that  if 
the  disability  is  such  as  not  only  to  render  the  injured 
employe  entirely  incapable  of  work,  but  also  so  help- 
less as  to  require  the  assistance  of  a  nurse,  the  weekly 
indemnity  during  the  period  of  such  assistance  shall 
be  increased  to  one  hundred  per  cent  of  the  average 
weekly  earnings. 

H:  *  *  *  *  *  *  *  1 

"  (c)  If  the  disability  caused  by  the  accident  is  at 
times  total  and  at  times  partial,  the  weekly  indemnity 
during  the  periods  of  each  such  total  or  partial  dis- 
ability shall  be  in  accordance  with  said  subsections 
(a)  and  (6)  respectively. 

"(d)  Said  subsections  (a),  (6)  and  (c)  shall  be  sub- 
ject to  the  following  limitations: 

1  See  Chapter  X,  post,  page  281,  for  §  8  (2)  (6). 


254     Bradbury's  workmen's  compensation  law 

California 

"Aggregate  disability  indemnity  for  a  single  injury 
shall  not  exceed  three  times  the  average  annual  earn- 
ings of  the  employe. 

"  If  the  period  of  disability  does  not  last  more  than 
one  week  from  the  day  the  employ^  leaves  work  as 
the  result  of  the  accident  no  indemnity  whatever  shall 
be  recoverable. 

"If  the  period  of  disability  lasts  more  than  one 
week  from  the  day  the  employe  leaves  work  as  the 
result  of  the  accident,  no  indemnity  shall  be  recover- 
able for  the  first  week  of  the  period  of  such  disability. 

"The  aggregate  disability  period  shall  not,  in  any 
event,  extend  beyond  fifteen  years  from  the  date  of 
the  accident."  ^ 

"§9  (1).  The  weekly  earnings  referred  to  in  sec- 
tion (8)  shall  be  one  fifty-second  of  the  average  annual 
earnings  of  the  employ^;  average  annual  earnings  shall 
not  be  taken  at  less  than  $333.33,  nor  more  than 
$1,666.66,  and  between  said  limits  shall  be  arrived  at 
as  follows: 

"(a)  If  the  injured  employ^  has  worked  in  such 
employment,  whether  for  the  same  employer  or  not, 
during  substantially  the  whole  of  the  year  immediately 
preceding  his  injury,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage 
or  salary  which  he  has  earned  as  such  employ^  during 
the  days  when  so  employed. 

"  (&)  If  the  injured  employe  has  not  so  worked  in 
such  employment  during  substantially  the  whole  of 
such  immediately  preceding  year,  his  average  annual 
earnings  shall  consist  of  three  hundred  times  the  aver- 
I  age  daily  wage  or  salary  which  an  employ^  of  the  same 
class  working  substantially  the  whole  of  such  imme- 

1  For  limitation  on  disability  benefit  in  case  of  death,  see  Chap- 
ter VIII,  ante,  page  212. 


TOTAL   OR   PERMANENT   DISABILITY  255 

California 

diately  preceding  year  in  the  same  or  a  similar  employ- 
ment in  the  same  or  a  neighboring  place  shall  have 
earned  during  the  days  when  so  employed. 

"  (c)  In  cases  where  the  foregoing  methods  of  arriv- 
ing at  the  average  annual  earnings  of  the  injured  em- 
ploy6  cannot  reasonably  and  fairly  be  applied,  such 
annual  earnings  shall  be  taken  at  such  sum  as  having 
regard  to  the  previous  earnings  of  the  injured  em- 
ploy6,  and  of  other  employes  of  the  same  or  most 
similar  class,  working  in  the  same  or  most  similar 
employment  in  the  same  or  neighboring  locahty,  shall 
reasonably  represent  the  average  earning  capacity  of 
the  injured  employ^  at  the  time  of  the  injury  in  the 
employment  in  which  he  was  working  at  such  time. 

"  (d)  The  fact  that  an  employ 6  has  suffered  a  pre- 
vious disability,  or  received  compensation  therefor, 
shall  not  preclude  him  from  compensation  for  a  later 
injury,  or  for  death  resulting  therefrom,  but  in  deter- 
mining compensation  for  the  later  injury,  or  death 
resulting  therefrom,  his  average  annual  earnings  shall 
be  such  sum  as  will  reasonably  represent  his  annual 
earning  capacity  at  the  time  of  the  later  injury,  and 
shall  be  arrived  at  according  to  the  previous  provi- 
sions of  this  section. 

"(2)  The  weekly  loss  in  wages  referred  to  in  sec- 
tion 8,  shall  consist  of  the  difference  between  the 
average  weekly  earnings  of  the  injured  employ^,  com- 
puted according  to  the  provisions  of  this  section,  and 
the  weekly  amount  which  the  injured  employ^,  in  the 
exercise  of  reasonable  diligence,  will  probably  be  able 
to  earn,  the  same  to  be  fixed  as  of  the  time  of  the 
accident,  but  to  be  determined  in  view  of  the  nature 
and  extent  of  the  injury." 


256    Bradbury's  workmen's  compensation  law 

Illinois 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  5.  The  amount  of  compensation  which  the  em- 
ployer who  accepts  the  provisions  of  this  Act  shall 
provide  and  pay  for  injury  to  the  employ^  resulting  in 
disability  shall  be: 

(Subdivision  a  provides  for  medical  attention.    See 
Chapter  VI,  ante,  page  197.) 

"b.  If  the  period  of  disability  lasts  for  more  than 
six  working  days,  and  such  fact  is  determined  by  the 
physician  or  physicians,  as  provided  in  Section  9, 
compensation  equal  to  one-half  of  the  earnings,  but 
not  less  than  five  dollars  nor  more  than  twelve  dollars 
per  week,  beginning  on  the  eighth  day  of  disability, 
and  as  long  as  the  disability  lasts,  or  until  the  amount 
of  compensation  paid  equals  the  amount  payable  as  a 
death  benefit. 

"c.  If  any  empioy6,  by  reason  of  any  accident  aris- 
ing out  of  and  in  the  course  of  his  employment,  receive 
any  serious  and  permanent  disfigurement  to  the  hands 
or  face,  but  which  injury  does  not  actually  incapacitate 
the  employe  from  pursuing  his  usual  or  customary 
employment  so  that  it  is  possible  to  measure  com- 
pensation in  accordance  with  the  scale  of  compensa- 
tion and  the  methods  of  computing  the  same  herein 
provided,  such  employe  shall  have  the  right  to  resort 
to  the  arbitration  provisions  of  this  Act  for  the  pur- 
pose of  determining  a  reasonable  amount  of  compen- 
sation to  be  paid  to  such  employ^,  but  not  to  exceed 
one-quarter  (3^)  of  the  amount  of  his  compensation  in 
case  of  death. 

"d.  If  after  the  injury  has  been  received  it  shall 


TOTAL   OR   PERMANENT  DISABILITY  257 

Illinois 

appear  upon  medical  examination  as  provided  for 
in  Section  9,  that  the  employe  has  been  partially, 
though  permanently  incapacitated  from  pursuing  his 
usual  and  customary  line  of  employment,  he  shall 
receive  compensation  equal  to  one-half  of  the  differ- 
ence between  the  average  amount  which  he  earned 
before  the  accident,  and  the  average  amount  which 
he  is  earning,  or  is  able  to  earn  in  some  suitable  em- 
ployment or  business  after  the  accident,  if  such  em- 
ployment is  secured. 

"e.  In  the  case  of  complete  disability  which  renders 
the  employe  wholly  and  permanently  incapable  of 
work,  compensation  for  the  first  eight  years  after  the 
day  the  injury  was  received,  equal  to  fifty  per  cent  of 
his  earnings,  but  not  less  than  five  dollars  nor  more 
than  twelve  dollars  per  week.  If  complete  disability 
continues  after  the  payment  of  a  sum  equal  to  the 
amount  of  the  death  benefit  or  after  the  expiration  of 
the  eight  years,  then  a  compensation  during  life,  equal 
to  eight  per  cent  of  the  death  benefit  which  would  have 
been  payable  had  the  accident  resulted  in  death.  Such 
compensation  shall  not  be  less  than  ten  dollars  per 
month  and  shall  be  payable  monthly. 

"(1)  In  case  death  occurs  before  the  total  of  the 
payments  made  equals  the  amount  payable  as  a 
death  benefit,  as  provided  in  Section  4,  Article  a,  then 
in  case  the  employe  leaves  any  widow,  child  or  children, 
or  parents,  or  other  lineal  heirs,  they  shall  be  paid  the 
difference  between  the  compensation  for  death  and  the 
sum  of  such  payment,  but  in  no  case  shall  this  sum 
be  less  than  five  hundred  dollars. 

"(2)  In  cases  of  complete  disability,  after  com- 
pensation has  been  paid  at  the  specified  rate  for  a  term 
of  at  lea.st  six  months,  the  employe  shall  have  the 
privilege  of  filing  a  petition  in  accordance  with  Arti- 
17 


258    bradbuky's  workmen's  compensation  law 

Illinois 

cle  d  of  Section  4  of  this  Act,  asking  for  a  lump  sum 
payment  of  the  difference  between  the  sum  of  the 
payments  received  and  the  compensation  to  which 
he  was  entitled  when  such  permanent  disability  had 
been  definitely  determined.  For  the  purpose  of  this 
section,  blindness  or  the  total  and  irrecoverable  loss 
of  sight,  the  loss  of  both  feet  at  or  above  the  ankle,  the 
loss  of  both  hands  at  or  above  the  wrist,  the  loss  of 
one  hand  and  one  foot,  an  injury  to  the  spine  result- 
ing in  permanent  paralysis  of  the  legs  or  arms,  and  a 
fracture  of  the  skull  resulting  in  incurable  imbecility 
or  insanity,  shall  be  considered  complete  and  perma- 
nent disability:  Provided,  these  specific  cases  of  com- 
plete disability  shall  not,  however,  be  construed  as 
excluding  other  cases. 

"§5,  e  (3).  In  fixing  the  amount  of  the  disability 
payments,  regard  shall  be  had  to  any  payments,  al- 
lowance or  benefit  which  the  employ^  may  have  re- 
ceived from  the  employer  during  the  period  of  his 
incapacity,  except  the  expenses  of  necessary  medical 
or  surgical  treatment.  In  no  event,  except  in  cases  of 
complete  disability  as  defined  above,  shall  any  weekly 
payment  payable  under  the  compensation  plan  in  this 
section  provided  exceed  twelve  dollars  per  week,  or 
extend  over  a  period  of  more  than  eight  years  from 
the  date  of  the  accident.  In  case  an  injured  employ^ 
shall  be  incompetent  at  the  time  when  any  right  or 
privilege  accrues  to  him  under  the  provisions  of  this 
Act,  a  conservator  or  guardian  of  the  incompetent, 
appointed  pursuant  to  law,  may  on  behalf  of  such 
incompetent,  claim  and  exercise  any  such  right  or 
privilege  with  the  same  force  and  effect  as  if  the  em- 
ploy6  himself  had  been  competent  and  had  claimed 
or  exercised  said  right  or  privilege;  and  no  limita- 
tions of  time  by  this  Act  provided,  shall  run  so  long 


TOTAL   OR   PERMANENT   DISABILITY  259 

Kansas 

as  said  incompetent  employ^  had  no  conservator  or 
guardian." 

"§11.  *  *  *  any  right  to  receive  compensation 
hereunder  shall  be  extinguished  by  the  death  of  the 
person  or  persons  entitled  thereto,  subject  to  the 
provisions  of  this  Act  relative  to  compensation  for 
death  received  in  the  course  of  employment.  *  *  *" 


KANSAS 

(L.  1911,  c.  218) 

"§11  (6).  Where  total  incapacity  for  work  results 
from  injury,  periodical  payments  during  such  incapac- 
ity, commencing  at  the  end  of  the  second  week,  equal 
to  fifty  per  cent  of  his  average  weekly  earnings  com- 
puted as  provided  in  section  12  but  in  no  case  less  than 
six  dollars  per  week  or  more  than  fifteen  dollars  per 
week." 

"  §  12.  Rule  for  compensation.  For  the  purposes  of 
the  provisions  of  this  act  relating  to  'earnings'  and 
'average  earnings'  of  a  workman,  the  following  rules 
shall  be  observed:  (a)  'Average  earnings'  shall  be 
computed  in  such  manner  as  is  best  calculated  to  give 
the  average  rate  per  week  at  which  the  workman  was 
being  remunerated  for  the  52  weeks  prior  to  the  acci- 
dent. Provided,  that  where  by  reason  of  the  shortness 
of  time  during  which  the  workman  has  been  in  the 
employment  of  his  employer,  or  the  casual  nature  or 
the  terms  of  the  employment,  it  is  impracticable  to 
compute  the  rate  of  remuneration,  regard  shall  be 
had  to  the  average  weekly  amount  which,  during  the 
twelve  months  previous  to  the  accident,  was  being 
earned  by  a  person  in  the  same  grade  employed  at  the 
same  work  by  the  same  employer,  or,  if  there  is  no 
person  employed,  by  a  person  in  the  same  grade  em- 


260     Bradbury's  workmen's  compensation  law 

Kansas 

ployed  in  the  same  class  of  employment  and  in  the 
same  district.  (6)  Where  the  workman  had  entered 
into  concurrent  contracts  of  service  with  two  or  more 
employers  under  which  he  worked  at  one  time  for  one 
such  employer  and  at  another  time  for  another  such 
employer,  his  'earnings'  and  his  'average  earnings' 
shall  be  computed  as  if  his  earnings  under  all  such 
contracts  were  earnings  in  the  employment  of  the  em- 
ployer for  whom  he  was  working  at  the  time  of  the 
accident,  (c)  Employment  by  the  same  employer 
shall  be  taken  to  mean  employment  by  the  same  em- 
ployer in  the  grade  in  which  the  workman  was  em- 
ployed at  the  time  of  the  accident,  uninterrupted  by 
his  absence  of  work  due  to  illness  or  any  other  un- 
avoidable cause,  (d)  Where  the  employer  has  been 
accustomed  to  pay  to  the  workman  a  sum  to  cover 
any  special  expenses  entailed  upon  him  by  the  nature 
of  his  employment,  the  sum  so  paid  shall  not  be 
reckoned  as  part  of  the  earnings,  (e)  In  fixing  the 
amount  of  the  payment,  allowance  shall  be  made  for 
any  payment  or  benefit  which  the  workman  may 
receive  from  the  employer  during  his  period  of  in- 
capacity. (/)  In  the  case  of  partial  incapacity  the 
payments  shall  be  computed  to  equal,  as  closely  as 
possible,  fifty  per  cent  of  the  difference  between  the 
amount  of  the  '  average  earnings '  of  the  workman  be- 
fore the  accident,  to  be  computed  as  herein  provided, 
and  the  average  amount  which  he  is  most  probably 
able  to  earn  in  some  suitable  employment  or  business 
after  the  accident,  subject,  however,  to  the  limitations 
hereinbefore  provided. 

"§  13.  Payments  to  the  injured  workman.  The  pay- 
ments shall  be  made  at  the  same  time,  place,  and  in 
the  same  manner  as  the  wages  of  the  workman  were 
payable  at  the  time  of  the  accident,  but  a  judge  of  any 


TOTAL   OR   PERMANENT   DISABILITY  261 

Massachusetts 

district  court  having  jurisdiction  upon  application  of 
either  party  may  modify  such  regulation  in  a  particu- 
lar case  as  to  him  may  seem  just." 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  II,  §9.  While  the  incapacity  for  work  re- 
sulting from  the  injury  is  total,  the  association  shall 
pay  the  injured  employe  a  weekly  compensation  equal 
to  one-half  his  average  weekly  wages,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week;  and 
in  no  case  shall  the  period  covered  by  such  compensa- 
tion be  greater  than  five  hundred  weeks,  nor  the 
amount  more  than  three  thousand  dollars." 

"Part  II,  §  11.  In  case  of  the  following  specified  in- 
juries the  amounts  hereinafter  named  shall  be  paid  in 
addition  to  all  other  compensations:  (a)  For  the  loss 
by  severance  of  both  hands  at  or  above  the  wrist,  or 
both  feet  at  or  above  the  ankle,  or  the  loss  of  one  hand 
and  one  foot,  or  the  reduction  to  one-tenth  of  normal 
vision  in  both  eyes  with  glasses,  one-half  of  the  average 
weekly  wages  of  the  injured  person,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week,  for 
a  period  of  one  hundred  weeks.  (6)  For  the  loss  by 
severance  of  either  hand  at  or  above  the  wrist,  or 
either  foot  at  or  above  the  ankle,  or  the  reduction  to 
one-tenth  of  normal  vision  in  either  eye  with  glasses, 
one-half  the  average  weekly  wages  of  the  injured  per- 
son, but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week,  for  a  period  of  fifty  weeks,  (c)  For  the 
loss  by  severance  at  or  above  the  second  joint  of  two 
or  more  fingers,  including  thumbs,  or  toes,  one-half 
the  average  weekly  wages  of  the  injured  person,  but 
not  more  than  ten  dollars  nor  less  than  four  dollars  a 


262    Bradbury's  workmen's  compensation  law 

Michigan 

week  for  a  period  of  twenty-five  weeks,  (d)  For  the 
loss  by  severance  of  at  least  one  phalange  of  a  finger, 
thumb,  or  toe,  one-half  the  average  weekly  wages  of 
the  injured  person,  but  not  more  than  ten  dollars  nor 
less  than  four  dollars  a  week,  for  a  period  of  twelve 
weeks."    (As  am'd  by  L.  1912,  c.  571.) 


MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §  1.  If  an  employ^  who  has  not  given 
notice  of  his  election  not  to  be  subject  to  the  pro- 
visions of  this  act,  as  provided  in  part  one,  sec- 
tion eight,  or  who  has  given  such  notice  and  has 
waived  the  same  as  hereinbefore  provided,  receives  a 
personal  injury  arising  out  of  and  in  the  course  of  his 
employment  by  an  employer  who  is  at  the  time  of 
such  injury  subject  to  the  provisions  of  this  act,  he 
shall  be  paid  compensation  in  the  manner  and  to  the 
extent  hereinafter  provided,  or  in  case  of  his  death 
resulting  from  such  injuries  such  compensation  shall 
be  paid  to  his  dependents  as  hereinafter  defined." 

******** 

"  §  9.  While  the  incapacity  for  work  resulting  from 
the  injury  is  total,  the  employer  shall  pay,  or  cause  to 
be  paid  as  hereinafter  provided,  to  the  injured  em- 
ploy6  a  weekly  compensation  equal  to  one-half  his 
average  weekly  wages,  but  not  more  than  ten  dollars 
nor  less  than  four  dollars  a  week ;  and  in  no  case  shall 
the  period  covered  by  such  compensation  be  greater 
than  five  hundred  weeks,  nor  shall  the  total  amount 
'        of  all  compensation  exceed  four  thousand  dollars." 

For  loss  of  hand,  foot,  arm,  leg  and  other  members, 
see  Part  II,  §  10,  Chapter  X,  post,  page  283. 


TOTAL   OR   PERMANENT   DISABILITY  263 

Nevada 

For  manner  of  computing  average  weekly  wages,  see 
Part  II,  §  11,  Chapter  X,  post,  page  285. 

NEVADA 

(L.  1911,  c.  183) 

"  §  6.  The  amount  of  compensation  in  case  of  total 
or  partial  disability  resulting  from  injury  shall  be: 

"(a)  A  weekly  payment  during  the  disability,  be- 
ginning within  ten  days  after  the  injury,  60  per  cent 
of  his  average  weekly  earnings  in  such  employment 
during  the  previous  twelve  months  if  he  has  been  so 
long  employed,  but  if  not,  then  for  any  less  period 
during  which  he  has  been  in  the  employment  of  the 
same  employer,  so  long  as  there  is  complete  disabihty; 
and  that  proportion  of  the  said  percentage  which  the 
depleted  earning  capacity  for  that  service  bears  to  the 
total  disability  when  the  injury  is  only  partial,  but  in 
no  event  shall  the  total  of  all  payments  under  this  act 
exceed  the  sum  of  three  thousand  dollars. 

"  (6)  In  addition  to  the  foregoing  payments,  if  the 
injured  person  lose  both  feet  or  both  hands,  or  one 
foot  and  one  hand,  or  both  eyes  or  one  eye  and  one 
foot  or  one  hand,  he  shall  receive,  during  a  full  period 
of  five  years,  40  per  cent  of  his  average  weekly  earn- 
ings, or  if  he  lose  one  foot,  one  hand  or  one  eye,  the 
additional  compensation  therefor  shall  be  15  per  cent 
of  his  average  weekly  earnings,  the  amount  of  such 
earnings  to  be  computed  in  the  same  manner  as  the 
foregoing  60  per  cent;  provided,  that  in  no  case  shall 
all  the  payments  received  herein  exceed  in  any  month 
the  whole  wages  earned  when  the  injury  occurs,  nor 
shall  the  added  percentages  continue  longer  than  to 
make  all  payments  aggregate  three  thousand  dollars." 


264     Bradbury's  workmen's  compensation  law 

•     New  Hampshire 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"§  6  (2).  Where  total  or  partial  incapacity  for  work 
at  any  gainful  employment  results  to  the  workman 
from  the  injury,  a  weekly  payment  commencing  at  the 
end  of  the  second  week  after  the  injury  and  continuing 
during  such  incapacity,  subject  as  herein  provided, 
not  exceeding  fifty  per  centum  of  his  average  weekly 
earnings  when  at  work  on  full  time  during  the  pre- 
ceding year  during  which  he  shall  have  been  in  the 
employment  of  the  same  employer,  or  if  he  shall  have 
been  in  the  employment  of  the  same  employer  for  less 
than  a  year,  then  a  weekly  payment  of  not  exceeding 
one-half  the  average  weekly  earnings  on  full  time  for 
such  less  period.  In  fixing  the  amount  of  the  weekly 
payment,  regard  shall  be  had  to  the  difference  between 
the  amount  of  the  average  earnings  of  the  workman 
before  the  accident  and  the  average  amount  he  is  able 
to  earn  thereafter  as  wages  in  the  same  employment 
or  otherwise.  In  fixing  the  amount  of  the  weekly 
payment,  regard  shall  be  had  to  any  payment,  allow- 
ance or  benefit  which  the  workman  may  have  received 
from  the  employer  during  the  period  of  his  incapacity, 
and  in  the  case  of  partial  incapacity  the  weekly  pay- 
ment shall  in  no  case  exceed  the  difference  between 
the  amount  of  the  average  weekly  earnings  of  the 
workman  before  the  accident  and  the  average  weekly 
amount  which  he  is  earning  or  is  able  to  earn  in  the 
same  employment  or  otherwise,  after  the  accident, 
I  but  shall  amount  to  one-half  of  such  difference.  In 
no  event  shall  any  compensation  paid  under  this  act 
exceed  the  damage  suffered,  nor  shall  any  weekly  pay- 
ment payable  under  this  act  in  any  event  exceed  ten 
dollars  a  week  or  extend  over  more  than  three  hundred 


TOTAL   OR   PERMANENT   DISABILITY  265 

Ohio 

weeks  from  the  date  of  the  accident.  Such  payment 
shall  continue  for  such  period  of  three  hundred  weeks 
provided  total  or  partial  disability  continue  during 
such  period.  No  such  payment  shall  be  due  or  payable 
for  any  time  prior  to  the  giving  of  thq  notice  required 
by  Sec.  5  of  this  act." 

NEW  JERSEY 

(L.  1911,  0.  95) 

"§II,  (11)  (6)  Complete  disability.  Proviso.  For 
disability  total  in  character  and  permanent  in  quality, 
fifty  per  centum  of  the  wages  received  at  the  time  of 
injury,  subject  to  a  maximum  compensation  of  ten 
dollars  per  week  and  a  minimimi  of  five  dollars  per 
week;  provided,  that  if  at  the  time  of  injury  the  em- 
ploye receives  wages  of  less  than  five  dollars  per  week, 
then  he  shall  receive  the  full  amount  of  wages  per 
week.  This  compensation  shall  be  paid  during  the 
period  of  such  disability,  not,  however,  beyond  four 
hundred  weeks." 

For  provisions  relating  to  permanent  partial  disa- 
bility, by  loss  of  member  see  Chapter  X,  post,  page  288. 

OHIO 

(L.  1911,  c.  000) 

'  §  27.  Total  disability — compensation.  In  case  of 
permanent  total  disability  the  award  shall  be  66  2-3% 
of  the  average  weekly  wage,  and  shall  continue  until 
the  death  of  such  person  so  totally  disabled,  but  not 
to  exceed  a  maximum  of  twelve  dollars  per  week,  and 
not  less  than  a  minimum  of  five  dollars  per  week,  if 
the  employe's  wages  were  less  than  five  dollars  per 
week,  then  he  shall  receive  his  full  wages." 


266    Bradbury's  workmen's  compensation  law 

Rhode  Island 

"^31.  Basis  of  compensation.  The  average  weekly 
wage  of  the  injured  person  at  the  time  of  the  injury 
shall  be  taken  as  the  basis  upon  which  to  compute  the 
benefits. 

"§32.  Future  earnings  considered.  If  it  is  estab- 
lished that  the  injured  employe  was  of  such  age 
and  experience  when  injured  as  that  under  natural 
conditions  his  wages  would  be  expected  to  increase, 
the  fact  may  be  considered  in  arriving  at  his  average 
weekly  wage."  ^ 

RHODE  ISLAND 

(L.  1912,  0.  000) 

"Art.  II,  §  10.  Total  incapacity.  While  the  inca- 
pacity for  work  resulting  from  the  injury  is  total,  the 
employer  shall  pay  the  injured  employ^  a  weekly 
compensation  equal  to  one-half  his  average  weekly 
wages,  earnings  or  salary,  but  not  more  than  ten  dol- 
lars nor  less  than  four  dollars  a  week;  and  in  no  case 
shall  the  period  covered  by  such  compensation  be 
greater  than  five  hundred  weeks  from  the  date  of  the 
injury.  In  the  following  cases  it  shall,  for  the  pur- 
poses of  this  section,  be  conclusively  presumed  that 
the  injury  resulted  in  permanent  total  disability,  to 
wit:  The  total  and  irrecoverable  loss  of  sight  in  both 
eyes,  the  loss  of  both  feet  at  or  above  the  ankle,  the 
loss  of  both  hands  at  or  above  the  wrist,  the  loss  of 
one  hand  and  one  foot,  an  injury  to  the  spine  result- 
ing in  permanent  and  complete  paralysis  of  the  legs 
or  arms,  and  an  injury  to  the  skull  resulting  in  in- 
;         curable  imbecility  or  insanity." 

"Art.   II,   §  12.  Specific  injuries.     In  case  of  the 
following  specified  injuries  the  amounts  named  in  this 
1  See  note  1  on  page  225,  in  Chapter  VIII. 


TOTAL   OR   PERMANENT   DISABILITY  267 

Rhode  Island 

section  shall  be  paid  in  addition  to  all  other  compensa- 
tion provided  for  in  this  act: 

"  (a)  For  the  loss  by  severance  of  both  hands  at  or 
above  the  wrist,  or  both  feet  at  or  above  the  ankle,  or 
the  loss  of  one  hand  and  one  foot,  or  the  entire  and 
irrecoverable  loss  of  the  sight  of  both  eyes,  one-half  of 
the  average  weekly  wages,  earnings  or  salary  of  the 
injured  person,  but  not  more  than  ten  dollars  nor  less 
than  four  dollars  a  week,  for  a  period  of  one  hundred 
weeks. 

"  (6)  For  the  loss  by  severance  of  either  hand  at  or 
above  the  wrist,  or  either  foot  at  or  above  the  ankle, 
or  the  entire  and  irrecoverable  loss  of  the  sight  of 
either  eye,  one-half  the  average  weekly  wages,  earn- 
ings or  salary  of  the  injured  person,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week,  for 
a  period  of  fifty  weeks. 

"(c)  For  the  loss  by  severance  at  or  above  the 
second  joint  of  two  or  more  fingers,  including  thumbs, 
or  toes,  one-half  the  average  weekly  wages,  earnings 
or  salary  of  the  injured  person  but  not  more  than  ten 
dollars  nor  less  than  four  dollars  a  week,  for  a  period 
of  twenty-five  weeks. 

"(d)  For  the  loss  by  severance  of  at  least  one 
phalange  of  a  finger,  thumb,  or  toe,  one-half  the 
average  weekly  wages,  earnings  or  salary  of  the  in- 
jured person,  but  not  more  than  ten  dollars  nor  less 
than  four  dollars  a  week,  for  a  period  of  twelve 
weeks." 

"§  13.  Average  weekly  wage  defined.  The  'average 
weekly  wages,  earnings,  or  salary'  of  an  injured  em- 
ploy6  shall  be  computed  as  follows : — 

"(a)  If  the  injured  employ^  has  worked  in  the 
same  employment  in  which  he  was  working  at  the 
time  of  the  accident,  whether  for  the  same  employer 


268    Bradbury's  workmen's  compensation  law 

Rhode  Island 

or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  his  'average  weekly 
wages'  shall  be  three  hundred  times  the  average 
daily  wages,  earnings  or  salary  which  he  has  earned 
in  such  employment  during  the  days  when  so  em- 
ployed and  working  the  number  of  hours  constituting 
a  full  working  day  in  such  employment,  divided  by 
fifty-two.  But  where  the  employ^  is  employed  con- 
currently by  two  or  more  employers,  for  one  of  whom 
he  works  at  one  time  and  for  another  of  whom  he 
works  at  another  time,  his  'average  weekly  wages' 
shall  be  computed  as  if  the  wages,  earnings  or  salary 
received  by  him  from  all  such  employers  were  wages, 
earnings  or  salary  earned  in  the  employment  of  the 
employer  for  whom  he  was  working  at  the  time  of  the 
accident. 

"(b)  If  the  injured  employe  has  not  so  worked  in 
such  employment  during  substantially  the  whole  of 
such  immediately  preceding  year,  his  '  average  weekly 
wages '  shall  be  three  hundred  times  the  average  daily 
wages,  earnings,  or  salary  which  an  employe  of  the 
same  class  working  substantially  the  whole  of  such 
immediately  preceding  year  in  the  same  or  a  similar 
employment,  in  the  same  or  a  neighboring  place,  has 
earned  in  such  employment  during  the  days  when  so 
employed  and  working  the  number  of  hours  con- 
stituting a  full  working  day  in  such  employment 
divided  by  fifty-two. 

"(c)  In  cases  where  the  foregoing  methods  of  ar- 
riving at  the  'average  weekly  wages,  earnings,  or 
1  salary'  of   the  injured   employ^    cannot  reasonably 

and  fairly  be  applied,  such  'average  weekly  wages' 
shall  be  taken  at  such  sum  as,  having  regard  to  the 
previous  wages,  earnings  or  salary  of  the  injured  em- 
ploy4,  and  other  employes  of  the  same  or  most  similar 


TOTAL   OR   PERMANENT   DISABILITY  269 

Washington 

class,  working  in  the  same  or  most  similar  employ- 
ment in  the  same  or  a  neighboring  locality,  shall 
reasonably  represent  the  weekly  earning  capacity  of 
the  injured  employe  at  the  time  of  the  accident  in  the 
employment  in  which  he  was  working  at  such  time. 

"  (d)  Where  the  employer  has  been  accustomed  to 
pay  to  the  employe  a  sum  to  cover  any  special  ex- 
pense incurred  by  said  employe  by  the  nature  of  his 
employment,  the  sum  so  paid  shall  not  be  reckoned 
as  part  of  the  employe's  wages,  earnings  or  salary. 

"(e)  The  fact  that  an  employe  has  suffered  a 
previous  injury,  or  received  compensation  therefor, 
shall  not  preclude  compensation  for  a  later  injury  or 
for  death;  but  in  determining  the  compensation  for 
the  later  injury  or  death,  his  'average  weekly  wages' 
shall  be  such  sum  as  will  reasonably  represent  his 
weekly  earning  capacity  at  the  time  of  the  later  injury, 
in  the  employment  in  which  he  was  working  at  such 
time,  and  shall  be  arrived  at  according  to,  and  subject 
to  the  limitations  of  the  previous  provisions  of  this 
section." 

No  deductions  are  to  be  made  from  compensation 
by  reason  of  insurance  or  other  benefits  due  to  the 
employ^.    Art.  II,  §  14.    See  Chapter  VIII,  ante,  p.  226. 

Payments  to  minors  and  mental  incompetents,  see 
Art.  II,  §  16,  Chapter  VIII,  ante,  page  227. 

WASHINGTON 

(L.  1911,  c.  74) 

"  §  5.  (6)  Permanent  total  disability  means  the  loss 
of  both  legs  or  both  arms,  or  one  leg  and  one  arm, 
total  loss  of  eyesight,  paralysis  or  other  condition 
permanently  incapacitating  the  workman  from  per- 
forming any  work  at  any  gainful  occupation. 


270     Bradbury's  workmen's  compensation  law 

Washington 

"When  permanent  total  disability  results  from  the 
injury  the  workman  shall  receive  monthly  during  the 
period  of  such  disability: 

"(1)  If  unmarried  at  the  time  of  the  injury,  the 
sum  of  S20.00. 

"(2)  If  the  workman  have  a  wife  or  invalid  hus- 
band, but  no  child  under  the  age  of  sixteen  years,  the 
sum  of  $25.00.  If  the  husband  is  not  an  invalid, 
^  the  monthly  payment  of  $25.00  shall  be  reduced  to 
^  $15.00. 

"  (3)  If  the  workman  have  a  wife  or  husband  and  a 
child  or  children  under  the  age  of  sixteen  years,  or, 
being  a  widow  or  widower,  have  any  such  child  or 
children,  the  monthly  payment  provided  in  the  pre- 
ceding paragraph  shall  be  increased  by  five  dollars  for 
each  such  child  until  such  child  shall  arrive  at  the  age 
of  sixteen  years,  but  the  total  monthly  payment  shall 
not  exceed  thirty-five  dollars. 

"  (c)  If  the  injured  workman  die  during  the  period 
of  total  disability,  whatever  the  cause  of  death,  leaving 
a  widow,  invalid  widower  or  child  under  the  age  of 
sixteen  years,  the  surviving  widow  or  invalid  widower 
shall  receive  twenty  dollars  per  month  until  death  or 
remarriage,  to  be  increased  five  dollars  per  month  for 
each  child  under  the  age  of  sixteen  years  until  such 
child  shall  arrive  at  the  age  of  sixteen  years;  but  if 
such  child  is  or  shall  be  without  father  or  mother,  such 
child  shall  receive  ten  dollars  per  month  until  arriving 
at  the  age  of  sixteen  years.  The  total  combined 
monthly  payment  under  this  paragraph  shall  in  no 
case  exceed  thirty-five  dollars.  Upon  remarriage  the 
payments  on  account  of  a  child  or  children  shall  con- 
tinue as  before  to  the  child  or  children. 

"(d)  When  the  total  disability  is  only  temporary, 
the  schedule  of  payment  contained  in  paragraphs  (1), 


TOTAL   OR   PERMANENT   DISABILITY  271 

Washington 

(2)  and  (3)  of  the  foregoing  subdivision  (d)  shall  apply 
so  long  as  the  total  disability  shall  continue,  increased 
50  per  cent  for  the  first  six  months  of  such  continu- 
ance, but  in  no  case  shall  the  increase  operate  to  make 
the  monthly  payment  exceed  sixty  per  cent  of  the 
monthly  wage  (the  daily  wage  multiplied  by  twenty- 
six)  the  workman  was  receiving  at  the  time  of  his  in- 
jury. As  soon  as  recovery  is  so  complete  that  the 
present  earning  power  of  the  workman,  at  any  kind  of 
work,  is  restored  to  that  existing  at  the  time  of  the 
occurrence  of  the  injury  the  payments  shall  cease. 
If  and  so  long  as  the  present  earnings  power  is  only 
partially  restored  the  payments  shall  continue  in  the 
proportion  which  the  new  earning  power  shall  bear  to 
the  old.  No  compensation  shall  be  payable  out  of  the 
accident  fund  unless  the  loss  of  earning  power  shall 
exceed  five  per  cent. 

"  (/)  Permanent  partial  disability  means  the  loss  of 
either  one  foot,  one  leg,  one  hand,  one  arm,  one  eye, 
one  or  more  fingers,  one  or  more  toes,  any  dislocation 
where  ligaments  are  severed,  or  any  other  injury 
known  in  surgery  to  be  permanent  partial  disability. 
For  any  permanent  partial  disability  resulting  from 
an  injury,  the  workman  shall  receive  compensation  in 
a  lump  sum  in  an  amount  equal  to  the  extent  of  the 
injury,  to  be  decided  in  the  first  instance  by  the  de- 
partment, but  not  in  any  case  to  exceed  the  sum  of 
$1,500.00.  The  loss  of  one  major  arm  at  or  above  the 
elbow  shall  be  deemed  the  maximum  permanent 
partial  disability.  Compensation  for  any  other  per- 
manent partial  disability  shall  be  in  the  proportion 
which  the  extent  of  such  disability  shall  bear  to  the 
said  maximum.  If  the  injured  workman  be  under  the 
age  of  twenty-one  years  and  unmarried,  the  parents 


272     Bradbury's  workmen's  compensation  law 


Wisconsin 


or  parent  shall  also  receive  a  lump  sum  payment  equal 
to  ten  per  cent  of  the  amount  awarded  the  minor 
workman, 

"  (g)  Should  a  further  accident  occur  to  a  workman 
already  receiving  a  monthly  payment  under  this  sec- 
tion for  a  temporary  disability,  or  who  has  been  pre- 
viously the  recipient  of  a  lump  sum  payment  under 
this  act,  his  future  compensation  shall  be  adjusted 
according  to  the  other  provisions  of  this  section  and 
with  regard  to  the  combined  effect  of  his  injuries,  and 
his  past  receipt  of  money  under  this  act." 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9  (2).  (a)  If  the  accident  causes  total 
disabiUty,  sixty-five  per  cent  of  the  average  weekly 
earnings  during  the  period  of  such  total  disability; 
provided  that,  if  the  disability  is  such  as  not  only  to 
render  the  injured  employe  entirely  incapable  of 
work,  but  also  so  helpless  as  to  require  the  assistance 
of  a  nurse,  the  weekly  indemnity  during  the  period  of 
such  assistance  after  the  first  ninety  days  shall  be 
increased  to  one  hundred  per  cent  of  the  average 
weekly  earnings. 

"(c)  If  the  disability  caused  by  the  accident 
is  at  times  total  and  at  times  partial,  the  weekly 
indemnity  during  the  periods  of  each  such  total  or 
partial  disability  shall  be  in  accordance  with  said 
subdivisions  (a)  and  (6),  respectively. 

"(d)  Said  subdivisions  (a),  (6),  and  (c)  shall  be 
subject  to  the  following  limitations: 

Aggregate  disability  indemnity  for  injury  to  a 
single  employ^  caused  by  a  single  accident  shall  not 


TOTAL   OR   PERMANENT   DISABILITY  273 

Wisconsin 

exceed  four  times  the  average  annual  earnings  of 
such  employ^. 

The  aggregate  disabiUty  period  shall  not,  in  any 
event,  extend  beyond  fifteen  years  from  the  date 
of  the  accident. 

The  weekly  indemnity  due  on  the  eighth  day  after 
the  employe  leaves  work  as  the  result  of  the  injury 
may  be  withheld  until  the  twenty-ninth  day  after 
he  so  leaves  work;  if  recovery  from  the  disability 
shall  then  have  occurred,  such  first  weekly  indemnity 
shall  not  be  recoverable;  if  the  disability  still  con- 
tinues, it  shall  be  added  to  the  weekly  indemnity 
due  on  said  twenty-ninth  day  and  be  paid  therewith. 

If  the  period  of  disability  does  not  last  more  than 
one  week  from  the  day  the  employ^  leaves  work  as  the 
result  of  the  injury  no  indemnity  whatever  shall  be 
recoverable." 

"§  3.  The  death  of  the  injured  employ^  shall  not 
affect  the  obligation  of  the  employer  under  subsections 
1  and  2  of  this  section,  so  far  as  liability  shall  have 
become  payable  at  the  time  of  death;  but  the  death 
shall  be  deemed  the  termination  of  disability,  and  the 
employer  shall  thereupon  be  liable  for  the  following 
death  benefits  in  lieu  of  any  further  disability  in- 
demnity:" (For  death  benefits  see  Chapter  VIII, 
ante,  page  229.) 

For  the  manner  of  arriving  at  the  weekly  earnings 
and  the  average  annual  earnings,  see  §  2394-10  re- 
printed in  Chapter  VIII,  ante,  page  231. 


18 


CHAPTER  X 

COMPENSATION  FOR  PARTIAL  OR  TEMPORARY 
DISABILITY 

Page 

1.  Introduction 274 

2.  Pain  and  suffering  not  compensated 275 

3.  Convict  not  entitled  to  compensation 275 

4.  Ability  to  do  light  work  after  accident;  exaggeration  of  in- 

jury   276 

5.  Ability  to  earn  same  wages  after  as  before  accident,  in  an- 

other class  of  work 276 

6.  Reduced  earnings  owing  to  general  fall  in  wages 276 

7.  Workman  receiving  same  wages  after  as  before  injury. .  . .  277 

8.  Wages  and  compensation  in  excess  of  wages  before  accident  277 

9.  Wages  and  compensation  after  accident  need  not  equal 

wages  before  injury 277 

10.  Infant;  "probable  earnings" 277 

IL  Clumsiness  due  to  injury  as  ground  of  incapacity 278 

12.  Wages  paid  seaman  under  shipping  act  taken  into  account 

in  awarding  compensation 278 

13.  Voluntary  idleness  of  workman  tending  to  prolong  dis- 

ability   279 

14.  Deducting  hospital  fees  from  compensation 279 

15.  Vocation  diseases;  contracted  partly  in  the  employment  of 

two  employers;  apportioning  compensation 280 

16.  Disability  by  disease  accelerated  by  accident;  basis  of  com- 

pensation    280 

17.  Unsuccessful  efforts  to  obtain  employment 280 

Page  Page 

CALiroRNiA  ..'. 281     New  Hampshire 287 

Illinois 281     New  Jersey 288 

Kansas 281     Ohio 290 

Massachusetts 282     Rhode  Island 291 

Michigan 283     Washington 292 

Nevada 287     Wisconsin 293 

274 


PARTIAL   OR   TEMPORARY   DISABILITY  275 

Convict,  not  entitled  to  compensation 

1.  Introduction. 

Some  of  the  statutes  provide  specific  sums  for  per- 
manent partial  "disability,"  such  as  the  loss  of  a 
finger,  a  hand,  etc.  The  term  is  a  misnomer  in  some 
instances.  For  example,  the  loss  of  a  toe  might  cause 
very  brief  disability.  Generally  speaking  there  has 
been  no  effort  to  define  partial  disability.  Undoubtedly 
many  difficult  questions  will  arise  under  the  provisions 
of  the  laws  printed  in  this  chapter.  For  example,  it  has 
been  held  that  even  though  a  man  has  suffered  an 
injury  which  is  permanent  in  character,  but  earns  as 
much  or  more  than  he  did  before  the  accident,  he  does 
not  suffer  any  disability  or  incapacity.  Although  in 
such  cases  a  nominal  award  is  made  sometimes  to  keep 
the  case  open  should  the  disability  recur. 

The  decisions  hereafter  cited  are  all  applicable  to 
one  or  more  of  the  acts  of  the  different  States. 

The  manner  of  arriving  at  the  ''average  wages"  as 
the  basis  of  compensation  is  discussed  fully  in  Chap- 
ter IX,  ante,  page  242. 

2.  Pain  and  suffering  not  compensated. 

The  Act  does  not  give  compensation  in  respect  of 
pain  and  suffering.  Where  a  workman  is  in  receipt  of 
the  same  amount  of  wages  as  he  earned  before  the  ac- 
cident, he  cannot  recover  any  compensation  until  such 
time  as  he  may  become  incapable  of  earning  that 
amount.  Irons  v.  Davis  &  Timmins  (1899),  80  L.  T. 
673;  1  W.  C.  C.  26. 

3.  Convict  not  entitled  to  compensation. 

A  workman  receiving  compensation  who  is  sen- 
tenced to  prison  is  not  entitled  to  such  compensation 


276     Bradbury's  workmen's  compensation  law 

Reduced  earnings  owing  to  general  fall  in  wages 

while  in  prison.  Clayton  and  Shuttleworth  v.  Dobbs 
(1908),  2  B.  W.  C.  C.  488. 

4.  Ability  to  do  light  work  after  accident;  exaggeration 

of  injury. 
A  workman  was  injured  in  a  colliery  and  drew  com- 
pensation for  about  four  years.  It  was  then  alleged  he 
was  fit  for  light  work,  but  he  said  he  could  not  do  it  on 
account  of  pain.  The  arbitrator  found,  as  a  fact,  that 
the  workman  was  exaggerating  and  that  he  could  do 
light  work.  It  was  held  that  there  was  evidence  upon 
which  the  arbitrator  could  so  find.  Price  v.  Burnyeat, 
Brown  &  Co.  (1907),  2  B.  W.  C.  C.  337. 

5.  Ability  to  earn  same  wages  after  as  before  acci- 

dent, in  another  class  of  work. 
An  unskilled  workman  who  is  able  to  do  other  work 
than  that  which  he  was  doing  before  he  was  injured,  is 
not  entitled  to  compensation  merely  because  he  is 
unable  to  do  such  former  work.  Cammell,  Laird  &  Co. 
V.  Piatt  (1908),  2  B.  W.  C.  C.  368. 

6.  Reduced  earnings  owing  to  general  fall  in  wages. 
A  workman,  who  in  the  course  of  his  employment, 

met  with  an  accident  necessitating  the  amputation  of 
his  right  hand,  subsequently  accepted  employment  in 
a  different  capacity,  receiving  the  same  wages  he  had 
earned  before  the  accident.  Some  time  later  his  wages 
were  reduced  owing  to  a  general  fall  in  wages,  and  upon 
his  claim  for  compensation,  it  was  held  that  the  change 
in  his  wages  was  not  attributable  to  any  change  in  his 
capacity  to  earn  wages,  and  therefore  he  was  not  en- 
titled to  compensation.  Merry  &  Cuninghame  v. 
Black  (1909),  46  Scotch  L.  R.  812;  2  B.  W.  C.  C.  372. 


PARTIAL   OR   TEMPORARY   DISABILITY  277 

Infant,  "probable  earnings" 

7.  Workman  receiving  same  wages  after  as  before 

injury. 
If  a  workman  earns  after  the  accident  the  same 
amount  of  wages  as  he  had  previously  earned,  he  is  not 
at  that  time  entitled  to  receive  compensation.  In 
such  a  case  the  workman  is  entitled  to  an  award  fixing 
the  employer  with  liability,  but  the  assessment  of  com- 
pensation may  be  adjourned  until  such  time  as  the 
workman  suffers  loss  through  disability.  Chandler  v. 
Smith  &  Son  (1899),  1  W.  C.  C.  19. 

8.  Wages  and  compensation  in  excess  of  wages  be- 

fore accident. 

Where  an  injured  workman  to  whom  compensation 
is  being  paid  secures  other  employment  whereby  his 
wages  and  compensation  exceed  his  wages  before  the 
injury  the  compensation  should  be  reduced  so  he 
shares  the  loss  with  his  employer.  Anley's  Executors  v. 
Neale  (1907),  9  W.  C.  C.  34. 

9.  Wages  and  compensation  after  accident  need  not 

equal  wages  before  injury. 
An  injured  workman  who  had  previously  earned 
32s.  Qd.  per  week,  earned  25s.  per  week  after  the  ac- 
cident. He  claimed  7s.  Qd.  per  week,  and  the  judge 
awarded  him  3s.  9d.  He  appealed.  It  was  held  that 
there  was  no  misdirection  and  the  judge  was  not  com- 
pelled to  give  the  full  difference  between  the  earnings 
before  and  after  the  accident.  Humphreys  v.  City  of 
London  Electric  Lighting  Co.  (1911),  4  B.  W.  C.  C.  275. 

10.  Infant,  "  probable  earnings." 

Where  a  minor  is  injured   compensation  may  be 


278    bradbtjry's  workmen's  compensation  law 

Wages  paid  seaman  under  shipping  act 

awarded  on  the  theory  that  he  would  "probably  be 
earning"  higher  wages  if  it  were  not  for  the  injury. 
Edwards  v.  The  Alyn  Steel  Tinplate  Co.  (1910),  3  B.  W. 
C.  C.  141. 

11.  Clumsiness  due  to  injury  as  ground  of  incapacity. 

A  waitress  had  an  injury  to  her  finger,  which,  be- 
coming stiff,  prevented  her  from  working  as  efficiently 
as  before.  She  received  compensation  for  some  time, 
and  then  returned  to  her  old  work  at  her  old  wages. 
She  could  not  work  as  well  as  she  did  before,  and  her 
employers  complained  of  her  clumsiness.  She  left  this 
work  of  her  own  accord,  and,  without  any  attempt  to 
find  other  work,  claimed  compensation.  The  County 
Court  judge  found  that  she  could  not  work  as  well  as 
before,  and  that  she  was  therefore  partially  incapac- 
itated, and  he  awarded  her  compensation.  It  was  held 
on  appeal  that  there  was  evidence  to  support  this 
finding.    Ward  v.  Miles  (1911),  4  B.  W.  C.  C.  182. 

12.  Wages  paid  seaman  under  shipping  act  taken 
into  account  in  awarding  compensation. 

A  seaman  was  injured  at  sea,  and  eight  days  later  was 
placed  in  a  hospital  at  New  York,  and  discharged  from 
the  ship.  In  pursuance  of  the  Merchant  Shipping  Acts, 
the  shipowners  paid  him  wages  in  respect  of  the  eight 
days,  maintained  him  in  the  hospital,  and  brought  him 
back  to  England  on  his  recovery.  He  claimed  com- 
pensation from  the  date  of  his  return  to  England.  The 
employers  asked  that  accounts  should  be  taken  of 
the  wages  for  the  eight  days  as  a  payment  made  by 
them  to  the  workman  during  incapacity.  The  County 
Court  judge  held  that  these  wages  being  paid  under  a 


PARTIAL   OR  TEMPORARY   DISABILITY  279 

Deducting  hospital  fees  from  compensation 

statutory  liability,  could  not  be  so  taken  into  account. 
The  Court  of  Appeal  reversed  its  decision.  The  House 
of  Lords  reversed  the  decision  of  the  Court  of  Appeal, 
and  held  that  the  wages  paid  for  eight  days  must  be 
taken  into  account  in  fixing  the  amount  of  the  weekly 
payments.  McDermott  v.  Owners  of  S.  S.  Tintoretto 
(1910),  103  L.  T.  769;  4  B.  W.  C.  C.  123. 

13.  Voluntary  idleness  of  workman   as   tending  to 
prolong  disability. 

The  judge,  who  sat  with  a  medical  assessor,  came  to 
the  conclusion  that  if  the  workman  had  taken  proper 
steps  to  obtain  exercise  which  he  ought  to  have  taken 
more  than  a  year  before  the  hearing,  he  would  have 
recovered  from  any  disability,  and  that  his  present 
state  was  due  only  to  want  of  condition  arising  from 
long-continued  and  unnecessary  idleness.  Compensa- 
tion, therefore,  was  denied.  The  decision  of  the  County 
Court  judge  was  sustained  on  appeal.  Upper  Forest 
and  Worcester  Steel  and  Tinplate  Co.  v.  Grey  (1910),  3 
B.  W.  C.  C.  424. 

14.  Deducting  hospital  fees  from  compensation.^ 

An  injured  workman  was  treated  at  a  hospital  where 
the  fees  were  paid  by  the  employers,  who  claimed  that 
they  were  entitled  to  a  deduction  for  the  fees  so  paid. 
It  was  held  that  the  payment  was  clearly  a  benefit  to 

1  Such  a  question  could  usually  not  arise  under  the  statutes  of 
the  various  States,  as  they  require  the  employer  to  furnish  medical 
attention  to  a  limited  amount.  Of  course  if  the  medical  fees  ex- 
ceeded the  statutory  limitation  in  any  case  the  principle  of  the  case 
in  the  text  might  apply.  The  British  Act  does  not  have  any  pro- 
vision for  medical  attention. 


280     Bradbury's  workmen's  compensation  law 

Unsuccessful  efforts  to  obtain  employment 

the  workman  within  the  meaning  of  Schedule  I  (3),  and 
the  employers  could  therefore  deduct  the  fees  so  paid 
from  the  compensation.  Suleman  v.  Owners  of  the 
''Ben  Lomond"  (1909),  2  B.  W.  C.  C.  499. 

15.  Vocational  diseases;  contracted  partly  in  the  em- 
ployment of  two  employers;  apportioning  com- 
pensation. 

Where  an  industrial  disease  is  contracted  by  a  gradual 
process,  "and  during  the  twelve  months  previous  to  the 
incapacity  the  workman  has  been  employed  by  two 
employers,  in  the  absence  of  any  special  risk  or  degree 
of  the  poison  in  either  employment,  the  period  of  em- 
ployment by  each  employer  is  the  basis  for  calculating 
the  proportion  of  the  compensation  which  should  be 
paid  by  each.  Lees  v.  Waring  &  Gillow  {Ferguson,  third 
party),  (1909),  2  B.  W.  C.  C.  474. 

16.  Disability  by  disease  accelerated  by  accident; 
basis  of  compensation. 

Where  it  is  proved  that  apart  from  accident  a  disease 
would  have  caused  incapacity  for  work  on  a  given  day 
in  the  future,  and  that  an  accident  has  accelerated  the 
progress  of  the  disease  so  as  to  cause  present  incapacity, 
the  award  should  limit  the  time  during  which  compen- 
sation is  to  be  paid  to  the  period  during  which  in- 
capacity is  caused  by  the  acceleration  of  the  progress 
of  the  disease.  Ward  v.  London  and  North  Western  Ry. 
Co.  (1901),  3  W.  C.  C.  192. 


17.  Unsuccessful  efforts  to  obtain  employment. 

If  a  man  has  unsuccessfully  made  reasonable  bona 
fide  efforts  to  obtain  employment  at  work  which  he  is 


PARTIAL   OR   TEMPORARY   DISABILITY  281 

Kansas 

physically  capable  of  performing  he  is  not  able  to  earn 
anything.  Clark  v.  Gas  Light  &  Coke  Co.  (1905),  7  W. 
C.  C.  119. 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  8  (2)  (6)  If  the  accident  causes  partial  disa- 
bility, sixty-five  per  cent  of  the  weekly  loss  in  wages 
during  the  period  of  such  partial  disability." 

For  indemnity  when  disability  is  at  times  total  and 
at  times  partial,  see  Chapter  IX,  ante,  page  253. 

For  limitation  on  time  of  payments  see  Chapter  IX, 
ante,  pages  253-4. 

For  manner  of  computing  amounts  payable  see 
Chapter  IX,  ante,  page  254. 

ILLINOIS 

(L.  1911,  c.  000) 

The  provisions  of  the  Illinois  Statute  for  perma- 
nent and  temporary  disability  are  so  interwoven  that 
it  is  impossible  to  segregate  the  different  provisions. 
They  will  all  be  found,  therefore,  in  Chapter  IX,  ante, 
page  256. 

KANSAS 

(L.  1911,  c.  218) 

"§11.  (c)  When  partial  incapacity  for  work  re- 
sults from  injury,  periodical  payments  during  such 
incapacity,  commencing  at  the  end  of  the  second  week, 
shall  not  be  less  than  twenty-five  per  cent,  nor  exceed- 
ing fifty  per  cent,  based  upon  the  average  weekly  earn- 


282    Bradbury's  workmen's  compensation  law 

Massachusetts 

ings  computed  as  provided  in  section  12,  but  in  no 
case  less  than  three  dollars  per  week  or  more  than 
twelve  dollars  per  week;  provided,  however,  that  if 
the  workman  is  under  twenty-one  years  of  age  at  the 
date  of  the  accident  and  the  average  weekly  earnings 
are  less  than  $10.00  his  compensation  shall  not  be 
less  than  seventy-five  per  cent  of  his  average  earn- 
ings. No  such  payment  for  total  or  partial  disability 
shall  extend  over  a  period  exceeding  ten  years." 

For  the  rule  of  compensation;  that  is,  the  manner  of 
computing  the  wages  to  be  made  the  basis  of  the 
award  for  compensation,  see  §  12,  reprinted  in  Chap- 
ter IX,  ante,  page  259. 

"  §  13.  Payments  to  the  injured  workman.  The  pay- 
ments shall  be  made  at  the  same  time,  place,  and  in 
the  same  manner  as  the  wages  of  the  workman  were 
payable  at  the  time  of  the  accident,  but  a  judge  of  any 
district  court  having  jurisdiction  upon  application 
of  either  party  may  modify  such  regulation  in  a 
particular  case  as  to  him  may  seem  just. 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  II,  §  10.  While  the  incapacity  for  work  re- 
sulting from  the  injury  is  partial,  the  association 
shall  pay  the  injured  employ 6  a  weekly  compensation 
equal  to  one-half  the  difference  between  his  average 
weekly  wages  before  the  injury  and  the  average 
I  weekly  wages  which  he  is  able  to  earn  thereafter, 
but  not  more  than  ten  dollars  a  week;  and  in  no  case 
shall  the  period  covered  by  such  compensation  be 
greater  than  three  hundred  weeks  from  the  date  of 
the  injury." 


PARTIAL    OR   TEMPORARY   DISABILITY  283 

Michigan 

Certain  specified  sums  are  also  payable  for  loss  of 
a  leg,  an  arm,  a  finger,  a  toe,  etc.  Part  II,  §  11.  See 
Chapter  IX,  ante,  page  261. 

MICHIGAN 
(L.  1912,  c.  000) 

"Part  II,  §  10.  While  the  incapacity  for  work  re- 
sulting from  the  injury  is  partial,  tlie  3mployer  shall 
pay,  or  cause  to  be  paid  as  hereinafter  provided,  to 
the  injured  employe  a  weekly  compensation  equal  to 
one-half  the  difference  between  his  average  weekly 
wages  before  the  injury  and  the  average  weekly  wages 
which  he  is  able  to  earn  thereafter,  but  not  more  than 
ten  dollars  a  week;  and  in  no  case  shall  the  period 
covered  by  such  compensation  be  greater  than  three 
hundred  weeks  from  the  date  of  the  injury.  In  cases 
included  by  the  following  schedule  the  disability  in 
each  such  case  shall  be  deemed  to  continue  for  the 
period  specified,  and  the  compensation  so  paid  for 
such  injury  shall  be  as  specified  therein,  to-wit: 

"For  the  loss  of  a  thumb,  fifty  per  centum  of  the 
average  weekly  wages  during  sixty  weeks; 

"For  the  loss  of  a  first  finger,  commonly  called 
index  finger,  fifty  per  centum  of  average  weekly 
wages  during  thirty-five  weeks; 

"For  the  loss  of  a  second  finger,  fifty  per  centum  of 
average  weekly  wages  during  thirty  weeks; 

"For  the  loss  of  a  third  finger,  fifty  per  centum  of 
average  weekly  wages  during  twenty  weeks; 

"For  the  loss  of  a  fourth  finger,  commonly  called 
little  finger,  fifty  per  centum  of  average  weekly  wages 
during  fifteen  weeks; 

"The  loss  of  the  first  phalange  of  the  thumb,  or  of 
any  finger,  shall  be  considered  to  be  equal  to  the  loss 


284    Bradbury's  workmen's  compensation  law 

Michigan 

of  one-half  of  such  thumb,  or  finger,  and  compensation 
shall  be  one-half  the  amounts  above  specified; 

"The  loss  of  more  than  one  phalange  shall  be  con- 
sidered as  the  loss  of  the  entire  finger  or  thumb: 
Provided,  however.  That  in  no  case  shall  the  amount 
received  for  more  than  one  finger  exceed  the  amount 
provided  in  this  schedule  for  the  loss  of  a  hand; 

"For  the  loss  of  a  great  toe,  fifty  per  centum  of 
average  weekly  wages  during  thirty  weeks; 

"For  the  loss  of  one  of  the  toes  other  than  a  great 
toe,  fifty  per  centum  of  average  weekly  wages  during 
ten  weeks; 

"The  loss  of  the  first  phalange  of  any  toe  shall  be 
considered  to  be  equal  to  the  loss  of  one-half  of  such 
toe,  and  compensation  shall  be  one-half  of  the  amount 
above  specified; 

"The  loss  of  more  than  one  phalange  shall  be  con- 
sidered as  the  loss  of  the  entire  toe; 

"For  the  loss  of  a  hand,  fifty  per  centum  of  average 
weekly  wages  during  one  hundred  and  fifty  weeks; 

"For  the  loss  of  an  arm,  fifty  per  centum  of  average 
weekly  wages  during  two  hundred  weeks; 

"For  the  loss  of  a  foot,  fifty  per  centum  of  average 
weekly  wages  during  one  hundred  and  twenty-five 
weeks; 

"For  the  loss  of  a  leg,  fifty  per  centum  of  average 
weekly  wages  during  one  hundred  and  seventy-five 
weeks; 

"For  the  loss  of  an  eye,  fifty  per  centum  of  average 
weekly  wages  during  one  hundred  weeks; 
I  "The  loss  of  both  hands,  or  both  arms,  or  both  feet, 

'  or  both  legs,  or  both  eyes,  or  of  any  two  thereof,  shall 

constitute  total  and  permanent  disability,  to  be  com- 
pensated according  to  the  provisions  of  section  nine. 

"The  amounts  specified  in  this  clause  are  all  sub- 


PARTIAL   OR   TEMPORARY   DISABILITY  285 

Michigan 

ject  to  the  same  limitations  as  to  maximum  and  min- 
imum as  above  stated. 

"§  11.  The  term  'average  weekly  wages'  as  used  in 
this  act  is  defined  to  be  one  fifty-second  part  of  the 
average  annual  earnings  of  the  employe.  If  the  injured 
employe  has  not  worked  in  the  employment  in  which  he 
was  working  at  the  time  of  the  accident,  whether  for 
the  employer  or  not,  during  substantially  the  whole 
of  the  year  immediately  preceding  his  injury,  his 
average  annual  earnings  shall  consist  of  three  hundred 
times  the  average  daily  wage  or  salary  which  he  has 
earned  in  such  employment  during  the  days  when  so 
employed.  If  the  injured  employe  has  not  worked  in 
such  employment  during  substantially  the  whole  of 
such  immediately  preceding  year,  his  average  annual 
earnings  shall  consist  of  three  hundred  times  the 
average  daily  wage  or  salary  which  an  employe  of  the 
same  class  working  substantially  the  whole  of  such 
immediately  preceding  year  in  the  same  or  a  similar 
employment  in  the  same  or  a  neighboring  place,  shall 
have  earned  in  such  employment  during  the  days 
when  so  employed.  In  cases  where  the  foregoing 
methods  of  arriving  at  the  average  annual  earnings  of 
the  injured  employe  cannot  reasonably  and  fairly  be 
applied,  such  annual  earnings  shall  be  taken  at  such 
sum  as,  having  regard  to  the  previous  earnings  of  the 
injured  employe,  and  of  other  employes  of  the  same 
or  most  similar  class,  working  in  the  same  or  most 
similar  employment,  in  the  same  or  neighboring  lo- 
cality, shall  reasonably  represent  the  annual  earning 
capacity  of  the  injured  employe  at  the  time  of  the 
accident  in  the  employment  in  which  he  was  working 
at  such  time.  The  fact  that  an  employe  has  suffered 
a  previous  disability,  or  received  compensation  there- 
for, shall  not  preclude  compensation  for  a  later  in- 


286    Bradbury's  workmen's  compensation  law 

Michigan 

jury,  or  for  (Jeath,  but  in  determining  compensation 
for  the  later  injury,  or  death,  his  average  annual  earn- 
ings shall  be  such  sum  as  will  reasonably  represent  his 
annual  earning  capacity  at  the  time  of  the  later  injury 
in  the  employment  in  which  he  was  working  at  such 
time,  and  shall  be  arrived  at  according  to  and  subject 
to  the  limitations  of  the  provisions  of  this  section. 
The  weekly  loss  in  wages  referred  to  in  this  act  shall 
consist  of  such  percentage  of  the  average  weekly 
earnings  of  the  injured  employ^,  computed  according 
to  the  provisions  of  this  section,  as  shall  fairly  repre- 
sent the  proportionate  extent  of  the  impairment  of 
his  earning  capacity  in  the  employment  in  which  he 
was  working  at  the  time  of  the  accident,  the  same  to 
be  fixed  as  of  the  time  of  the  accident,  but  to  be  de- 
termined in  view  of  the  nature  and  extent  of  the  in- 
jury." 

"§  12,  The  death  of  the  injured  employ^  prior  to 
the  expiration  of  the  period  within  which  he  would 
receive  such  weekly  payments  shall  be  deemed  to  end 
such  disability,  and  all  liability  for  the  remainder  of 
such  payments  which  he  would  have  received  in  case 
he  had  lived  shall  be  terminated,  but  the  employer 
shall  thereupon  be  liable  for  the  following  death 
benefits  in  lieu  of  any  further  disability  indemnity: 

"If  the  injury  so  received  by  such  employ 6  was  the 
proximate  cause  of  his  death,  and  such  deceased  em- 
ploye leaves  dependents,  as  hereinbefore  specified, 
wholly  or  partially  dependent  on  him  for  support,  the 
death  benefit  shall  be  a  sum  sufficient,  when  added  to 
the  indemnity  which  shall  at  the  time  of  death  have 
been  paid  or  become  payable  under  the  provisions  of 
this  act  to  such  deceased  employ^,  to  make  the  total 
compensation  for  the  injury  and  death  exclusive  of 
medical  and  hospital  services  and  medicines  furnished 


PARTIAL   OR   TEMPORARY   DISABILITY  287 


New  Hampshire 


as  provided  in  section  four  hereof,  equal  to  the  full 
amount  which  such  dependents  would  have  been  en- 
titled to  receive  under  the  provisions  of  section  five 
hereof  in  case  the  accident  had  resulted  in  immediate 
death,  and  such  benefits  shall  be  payable  in  weekly 
installments  in  the  same  manner  and  subject  to  the 
same  terms  and  conditions  in  all  respects  as  payments 
made  under  the  provisions  of  said  section  five. 

"§  13.  No  savings  or  insurance  of  the  injured  em- 
ploy4,  nor  any  contribution  made  by  him  to  any 
benefit  fund  or  protective  association  independent  of 
this  act,  shall  be  taken  into  consideration  in  determin- 
ing the  compensation  to  be  paid  hereunder,  nor  shall 
benefits  derived  from  any  other  source  than  those 
paid  or  caused  to  be  paid  by  the  employer  as  herein 
provided,  be  considered  in  fixing  the  compensation 
under  this  act." 

NEVADA 

(L.  1911,  c.  183) 

The  provisions  of  the  statute  for  compensation  for 
total  and  partial  disability  are  combined  in  §  6  in  such 
a  way  as  to  make  segregation  impossible.  See  Chapter 
IX,  ante,  page  263. 

NEW  HAMPSHIRE 

(L.  1911,  c.OOO) 

Total  and  partial  incapacity  are  so  interwoven  in 
§  6,  (2),  of  the  Act  that  it  is  impossible  to  segregate 
them.    See  Chapter  IX,  ante,  page  264. 


288     Bradbury's  workmen's  compensation  law 

New  Jersey 


NEW  JERSEY 

(L.  1911,  c.  95) 

"§2.  (11).  Following  is  the  schedule  of  compen- 
sation : 

(o)  Schedule  of  payments.  Temporary  disability. 
Proviso.  For  injury  producing  temporary  disability, 
fifty  per  centum  of  the  wages  received  at  the  time 
of  injury,  subject  to  a  maximum  compensation  of 
ten  dollars  per  week  and  a  minimum  of  five  dollars 
per  week;  provided,  that  if  at  the  time  of  injury  the 
employ^  receives  wages  of  less  than  five  dollars  per 
week,  then  he  shall  receive  the  full  amount  of  such 
wages  per  week.  This  compensation  shall  be  paid 
during  the  period  of  such  disability,  not,  however, 
beyond  three  hundred  weeks." 

"(c)  Partial  disability.  For  disability  partial  in 
character  but  permanent  in  quality,  the  compen- 
sation shall  be  based  upon  the  extent  of  such  disa- 
bility. In  cases  included  by  the  following  schedule 
the  compensation  shall  be  that  named  in  the  schedule, 
to  wit: 

"  Thumb.  For  the  loss  of  a  thumb,  fifty  per  centum 
of  daily  wages  during  sixty  days. 

"First  finger.  For  the  loss  of  a  first  finger,  com- 
monly called  index  finger,  fifty  per  centum  of  daily 
wages  during  thirty-five  weeks. 

"Second  finger.  For  the  loss  of  a  second  finger, 
fifty  per  centum  of  daily  wages  during  thirty  weeks. 

"Third  finger.  For  the  loss  of  a  third  finger,  fifty 
per  centum  of  daily  wages  during  twenty  weeks. 

"Fourth  finger.    For  the  loss  of  a  fourth  finger. 


PARTIAL   OR   TEMPORARY   DISABILITY  289 

New  Jersey 

commonly  called  little  finger,  fifty  per  centum  of 
daily  wages  during  fifteen  weeks. 

"Phalange.  The  loss  of  the  first  phalange  of  the 
thumb,  or  of  any  finger,  shall  be  considered  to  be 
equal  to  the  loss  of  one-half  of  such  thumb,  or  finger, 
and  compensation  shall  be  one-half  the  amounts  above 
specified. 

"More  than  one  phalange.  Proviso.  The  loss  of 
more  than  one  phalange  shall  be  considered  as  the 
loss  of  the  entire  finger  or  thumb;  providing,  however, 
that  in  no  case  shall  the  amount  received  for  more 
than  one  finger  exceed  the  amount  provided  in  this 
schedule  for  the  loss  of  a  hand. 

"Great  toe.  For  the  loss  of  a  great  toe,  fifty  per 
centum  of  daily  wages  during  thirty  weeks. 

"Other  toes.  For  the  loss  of  one  of  the  toes  other 
than  a  great  toe,  fifty  per  centum  of  daily  wages  dur- 
ing ten  weeks. 

"Phalange  of  toe.  For  the  loss  of  the  first  phalange 
of  any  toe  shall  be  considered  to  be  equal  to  the  loss 
of  one-half  of  such  toe,  and  compensation  shall  be 
one-half  of  the  amount  above  specified. 

"More  than  one  phalange.  The  loss  of  more  than 
one  phalange  shall  be  considered  as  the  loss  of  the  en*- 
tire  toe. 

"Hand.  For  the  loss  of  a  hand,  fifty  per  centum 
of  daily  wages  during  one  hundred  and  fifty  weeks. 

"Arm.  For  the  loss  of  an  arm,  fifty  per  centum 
of  daily  wages  during  two  hundred  weeks. 

"Foot.  For  the  loss  of  a  foot,  fifty  per  centum  of 
daily  wages  during  one  hundred  and  twenty-five 
weeks. 

"Leg.  For  the  loss  of  a  leg,  fifty  per  centum  of 
daily  wages  during  one  hundred  and  seventy-five 
weeks. 

19 


290    Bradbury's  workmen's  compensation  law 

Ohio 

"Eye.  For  the  loss  of  an  eye,  fifty  per  centum  of 
daily  wages  during  one  hundred  weeks. 

"Both  hands,  etc.  The  loss  of  both  hands,  or  both 
arms,  or  both  feet,  or  both  legs,  or  both  eyes,  or  of  any 
two  thereof,  shall  constitute  total  and  permanent 
disability,  to  be  compensated  according  to  the  pro- 
visions of  clause  (6). 

"In  other  cases.  In  all  other  cases  in  this  class  the 
compensation  shall  bear  such  relation  to  the  amounts 
stated  in  the  above  schedule  as  the  disabiUties  bear 
to  those  produced  by  the  injuries  named  in  the 
schedule.  Should  the  employer  and  employ^  be  un- 
able to  agree  upon  the  amount  of  compensation  to 
be  paid  in  cases  not  covered  by  the  schedule,  the 
amount  of  compensation  shall  be  settled  according 
to  the  provisions  of  paragraph  twenty  hereof. 

"Maximum  and  minimum  amount.  The  amounts 
specified  in  this  clause  are  all  subject  to  the  same 
limitations  as  to  maximum  and  minimum  as  are 
stated  in  clause  (a)."  ^ 

Amputation  between  the  elbow  and  the  wrist  shall 
be  considered  as  the  equivalent  of  the  loss  of  a  hand, 
and  amputation  between  the  knee  and  the  ankle  shall 
be  considered  as  the  equivalent  of  the  loss  of  a  foot. 
§  III,  paragraph  23.    See  Chapter  XVII,  post,  page  340. 

OHIO 

(L.  1911,  c.  000) 

"§26.  Partial  disability — compensation.  In  case  of 
temporary  or   partial  disability,  the  employ^  shall 

1  Maximum  of  $10  a  week  and  minimum  of  $5  a  week;  provided, 
that  if  at  the  time  of  the  injury  the  employ^  receives  wages  less  than 
$5  per  week  then  he  shall  receive  the  full  amount  of  such  wages. 
See  §  2  (11)  (a),  ante,  page  288,  this  chapter. 


PARTIAL   OB   TEMPORARY   DISABILITY  291 

Rhode  Island 

receive  sixty-six  and  two-thirds  per  cent  of  the  im- 
pairment of  his  earning  capacity  during  the  con- 
tinuance thereof,  not  to  exceed  a  maximum  of  twelve 
dollars  per  week,  and  not  less  than  a  minimum  of 
five  dollars  per  week,  if  the  employe's  wages  were 
less  than  five  dollars  per  week,  then  he  shall  receive 
his  full  wages;  but  not  to  continue  for  more  than  six 
years  from  the  date  of  the  injury,  nor  to  exceed  three 
thousand  four  hundred  dollars  in  amount  from  that 
injury." 

"§31.  Basis  of  compensation.  The  average  weekly 
wage  of  the  injured  person  at  the  time  of  the  injury 
shall  be  taken  as  the  basis  upon  which  to  compute 
the  benefits. 

"  §  32.  Future  earnings  considered.  If  it  is  estab- 
lished that  the  injured  employ^  was  of  such  age  and 
experience  when  injured  as  that  under  natural  con- 
ditions his  wages  would  be  expected  to  increase,  the 
fact  may  be  considered  in  arriving  at  his  average 
weekly  wage." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  11.  Partial  incapacity.  While  the  in- 
capacity for  work  resulting  from  the  injury  is  partial, 
the  employer  shall  pay  the  injured  employ^  a  weekly 
compensation  equal  to  one-half  the  difference  be- 
tween his  average  weekly  wages,  earnings  or  salary, 
before  the  injury  and  the  average  weekly  wages,  earn- 
ings or  salary  which  he  is  able  to  earn  thereafter,  but 
not  more  than  ten  dollars  a  week;  and  in  no  case  shall 
the  period  covered  by  such  compensation  be  greater 
than  three  hundred  weeks  from  the  date  of  the  injury." 

For  amount  payable  for  specific  injuries,  see  Chap- 
ter IX,  ante,  page  266. 


292    Bradbury's  workmen's  compensation  law 

Wisconsin 

For  definition  of  average  weekly  wage,  see  §  13,  Chap- 
ter IX,  ante,  page  267. 

No  deductions  are  to  be  made  from  compensation 
by  reason  of  insurance  or  other  benefits  due  to  the 
employ^.  Art.  II,  §  14.  See  Chapter  VIII,  ante, 
page  226. 

Payments  to  minors  and  mental  incompetents,  see 
Art.  II,  §  16,  Chapter  VIII,  ante,  page  227. 

WASHINGTON 

(L.  1911,  c.  74) 

The  provisions  in  the  Washington  Act  for  permanent, 
total,  temporary  and  partial  disability  are  so  inter- 
mingled that  it  is  impossible  to  segregate  them  and  they 
are  all  printed  in  Chapter  IX,  ante,  page  269. 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-9  (2)  (b)  If  the  accident  causes  partial 
disability,  sixty-five  per  cent  of  the  weekly  loss  in 
wages  during  the  period  of  such  partial  disability. 

"  (c)  If  the  disability  caused  by  the  accident  is  at 
times  total  and  at  times  partial,  the  weekly  indemnity 
during  the  periods  of  each  such  total  or  partial  dis- 
ability shall  be  in  accordance  with  said  subdivisions  (a) 
and  (6),  respectively. 

"(d)  Said  subdivisions  (a),  ijb),  and  (c)  shall  be 
subject  to  the  following  limitations: 

"Aggregate  disability  indemnity  for  injury  to  a 
single  employ^  caused  by  a  single  accident  shall  not 
exceed  four  times  the  average  annual  earnings  of  such 
employ^. 

"The  aggregate  disability  period  shall  not,  in  any 


PARTIAL   OR   TEMPORARY   DISABILITY  293 

Wisconsin 

event,  extend  beyond  fifteen  years  from  the  date  of 
the  accident. 

"The  weekly  indemnity  due  on  the  eighth  day  after 
the  employe  leaves  work  as  the  result  of  the  injury 
may  be  withheld  until  the  twenty-ninth  day  after  he 
so  leaves  work;  if  recovery  from  the  disability  shall 
then  have  occurred,  such  first  weekly  indemnity  shall 
not  be  recoverable;  if  the  disability  still  continues,  it 
shall  be  added  to  the  weekly  indemnity  due  on  said 
twenty-ninth  day  and  be  paid  therewith. 

"  If  the  period  of  disability  does  not  last  more  than 
one  week  from  the  day  the  employ^  leaves  work  as  the 
result  of  the  injury  no  indemnity  whatever  shall  be 
recoverable. 

"3.  The  death  of  the  injured  employ^  shall  not 
affect  the  obhgation  of  the  employer  under  subsec- 
tions 1  and  2  of  this  section,  so  far  as  his  liability  shall 
have  become  payable  at  the  time  of  death;  but  the 
death  shall  be  deemed  the  termination  of  disability, 
and  the  employer  shall  thereupon  be  liable  for  the 
following  death  benefits  in  lieu  of  any  further  disabil- 
ity indemnity:"  (For  death  benefits  see  Chapter  VIII, 
ante,  page  229). 

For  the  manner  of  arriving  at  the  weekly  earnings 
and  the  average  annual  earnings,  see  §  2394-10,  re- 
printed in  Chapter  VIII,  ante,  page  231. 


CHAPTER  XI 

COMMUTATION  OF  AWARD  OR  AGREED  COMPENSA- 
TION BY  PRESENT  PAYMENT  OF  LUMP  SUM,  BY 
ANNUITY  OR  OTHERWISE ' 

Page  Page 

California 295     New  Hampshire 299 

Illinois 295     New  Jersey 299 

Kansas 296     Ohio 299 

Massachusetts  .  .... 298     Rhode  Island 300 

Michigan , 298     Washington 301 

Nevada 298     Wisconsin 302 

Most  of  the  statutes  contain  specific  provisions  re- 
lating to  present  lump-sum  payments  in  full  settle- 
ment of  any  claim  for  compensation.  Each  statute 
must  be  consulted.  The  decisions  below  will  be  found 
useful  in  applying  the  principles  underlying  such 
lump-sum  payments. 

In  arriving  at  a  lump  sum  to  be  paid  the  court  should 
not  take  the  actual  value  of  the  compensation  based  on 
the  man's  age  and  his  expectancy  of  life,  but  upon  a 
business  footing  as  between  employer  and  employ^. 
Grant  &  Aldcroft  v.  Conroy  (1904),  6  W.  C.  C.  153. 

A  workman  in  receipt  of  maximum  compensation  of 
17s.  3d.  per  week,  agreed  with  his  employers  to  receive 
the  sum  of  £175  to  redeem  the  liabiUty.  The  judge 
refused  to  allow  the  agreement  to  be  registered,  but 
this  decision  was  overruled  on  appeal  and  the  agree- 

»  See  Chapter  XXXV,  post,  page  571,  on  Compromising  Claims 
and  Awards. 

294 


COMMUTATION   OF   AWARD  295 

Illinois 

ment  was  ordered  to  be  recorded.     O^Neill  v.   The 
Anglo-American  Oil  Co.  (1909),  2  B.  W.  C.  C.  434. 

A  workman  sustained  injuries  in  the  course  of  his 
employment,  whereby  he  lost  his  arm.  The  employer 
paid  compensation  for  six  months  and  then  applied  to 
have  the  payments  redeemed  by  payment  of  a  lump 
sum.  The  arbitrator,  without  inquiring  as  to  the  work- 
man's capacity  for  work,  fixed  the  amount  of  the  lump 
sum  on  the  basis  of  permanent  incapacity,  and  it  was 
held  on  appeal  that  the  arbitrator  had  not  exceeded  his 
jurisdiction.  National  Telephone  Co.  v.  Smith  (1909), 
46  Scotch  L.  R.  988;  2  B.  W.  C.  C.  417. 

CALIFORIOA 

(L.  1911,  c.  399) 

The  amounts  payable  under  the  Act  must  be  paid 
"in  weekly  installments,"  ''unless  and  until  the  In- 
dustrial Accident  Board  shall  otherwise  direct."  §  8 
(3)  (a).    See  Chapter  VIII,  ante,  page  212. 

But  claims  arising  under  the  Act  may  be  compromised 
§  28.    See  Chapter  XXXV,  post,  page  574. 

ILLINOIS 

(L.  1911,  c.  000) 

"§  53^.  Any  person  entitled  to  compensation  under 
this  Act,  or  any  employer  who  shall  be  bound  to  pay 
compensation  under  this  Act,  who  shall  desire  to  have 
such  compensation,  or  any  part  thereof,  paid  in  a  lump 
sum,  may  petition  any  court  of  competent  jurisdic- 
tion of  the  county  in  which  the  employ^  resided  or 
worked  at  the  time  of  disability  or  death,  asking  that 
such  compensation  be  so  paid,  and  if  upon  proper  no- 


296    Bradbury's  workmen's  compensation  law 

Kansas 

tice  to  the  interested  parties,  and  a  proper  showing 
made  before  such  court,  it  appears  to  the  best  interest 
of  the  parties  that  such  compensation  be  so  paid,  the 
court  shall  order  payment  of  a  lump  sum,  and  where 
necessary,  upon  proper  application  being  made,  a 
guardian,  conservator  or  administrator,  as  the  case 
may  be,  shall  be  appointed  for  any  person  under  dis- 
ability who  may  be  entitled  to  any  such  compensa- 
tion, and  an  employer  bound  by  the  terms  of  this 
Act,  and  liable  to  pay  such  compensation,  may  peti- 
tion for  such  appointment  where  no  such  legal  repre- 
sentatives have  been  appointed  or  acting  for  such  party 
or  parties  so  under  disability." 

KANSAS 

(L.  1911,  c.  218) 

"§  14.  Compensation  to  dependents,  etc.  Where 
death  results  from  the  injury  and  the  dependents  of 
the  deceased  workman  as  herein  defined,  have  agreed 
to  accept  compensation,  and  the  amount  of  such  com- 
pensation- and  the  apportionment  thereof  between 
them  has  been  agreed  to  or  otherwise  determined,  the 
employer  may  pay  such  compensation  to  them  accord- 
ingly (or  to  an  administrator  if  one  be  appointed)  and 
thereupon  be  discharged  from  all  further  liability  for 
the  injury.  Where  only  the  apportionment  of  the 
agreed  compensation  between  the  dependents  is  not 
agreed  to,  the  employer  may  pay  the  amount  into  any 
district  court  having  jurisdiction,  or  to  the  adminis- 
trator of  the  deceased  workman,  with  the  same  effect. 
Where  the  compensation  has  been  so  paid  into  court 
or  to  an  administrator,  the  proper  court,  upon  the 
petition  of  such  administrator  or  any  of  such  depend- 
ents, and  upon  such  notice  and  proof  as  it  may  order 


COMMUTATION   OF   AWARD  297 

Kansas 

shall  determine  the  distribution  thereof  among  such 
dependents.  Where  there  are  no  dependents,  medical 
and  funeral  expenses  may  be  paid  and  distributed  in 
Uke  manner." 

"§31.  Judgment  upon  agreement  or  award.  At  any 
time  after  an  agreement  or  award  has  been  filed,  the 
workman  may  apply  to  the  said  district  court  for  judg- 
ment against  the  employer  for  a  lump  sum  equal  to 
eighty  per  cent  of  the  amount  of  payments  due  and 
unpaid  and  prospectively  due  under  the  agreement  or 
award ;  and,  unless  the  agreement  or  award  be  stayed, 
modified  or  canceled,  or  the  liability  thereunder  be 
redeemed  or  otherwise  discharged,  the  court  shall  ex- 
amine the  workman  under  oath,  and  if  satisfied  that 
the  application  is  made  because  of  doubt  as  to  the 
security  of  his  compensation,  shall  compute  the  sum 
and  direct  judgment  accordingly,  as  if  in  an  action; 
provided,  that  if  the  employer  shall  give  a  good  and 
sufficient  bond,  approved  by  the  court,  no  execution 
shall  issue  on  such  judgment  so  long  as  the  employer 
continues  to  make  payments  in  accordance  with  the 
original  agreement  or  award  undiminished  by  the 
discount." 

"  §  33.  Redemption  of  liability.  Where  any  payment 
has  been  continued  for  not  less  than  six  months  the 
liability  therefor  may  be  redeemed  by  the  employer 
by  the  payment  to  the  workman  of  a  lump  sum  of  an 
amount  equal  to  eighty  per  cent  of  the  payments 
which  may  become  due  according  to  the  award,  such 
amount  to  be  determined  by  agreement,  or,  in  default 
thereof,  upon  application,  to  a  judge  of  a  district  court 
having  jurisdiction.  Upon  paying  such  amount  the 
employer  shall  be  discharged  from  all  further  liability 
on  account  of  the  injury,  and  be  entitled  to  a  duly 
executed  release,  upon  filing  which  or  other  due  proof 


298    Bradbury's  workmen's  compensation  law 

Nevada 

of  payment,   the  liability  upon  any  agreement  or 
award  shall  be  discharged  of  record." 


MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  22.  Whenever  any  weekly  payment  has 
been  continued  for  not  less  than  six  months,  the  lia- 
bility therefor  may  in  unusual  cases  be  redeemed  by 
the  payment  of  a  lump  sum  by  agreement  of  the  par- 
ties, subject  to  the  approval  of  the  industrial  accident 
board." 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  II,  §  22.  Whenever  any  weekly  payment  has 
been  continued  for  not  less  than  six  months,  the  liabil- 
ity therefor  may  be  redeemed  by  the  payment  of  a 
lump  sum  by  agreement  of  the  parties,  subject  to  the 
approval  of  the  industrial  accident  board,  and  said 
board  may  at  any  time  direct  in  any  case,  if  special 
circumstances  be  found  which  in  its  judgment  require 
the  same,  that  the  deferred  payments  be  commuted 
on  the  present  worth  thereof  at  five  per  cent  per 
annum  to  one  or  more  lump  sum  payments,  and  that 
such  payments  shall  be  made  by  the  employer  or  the 
.  insurance  company  carrying  such  risk,  or  commis- 
sioner of  insurance,  as  the  case  may  be." 

NEVADA 

(L.  1911,  c.  183) 

There  is  no  provision  in  the  Nevada  Statute  on  this 
subject. 


COMMUTATION    OF   AWARD  299 

Ohio 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

The  court  may  grant  an  order  for  the  payment  of 
a  lump  sum  either  on  the  apphcation  of  the  workman 
ot  of  the  employer.  §  9,  reprinted  in  Chapter  XXIV, 
post,  page  427. 

NEW  JERSEY 
(L.  1911,  c.  95) 

"§  2-21.  Amount  may  he  commuted.  The  amounts 
payable  periodically  as  compensation  may  be  com- 
muted to  one  or  more  lump  sum  payments  by  the 
judge  of  the  court  of  common  pleas  having  jurisdiction 
as  set  forth  in  the  preceding  paragraph,  upon  the 
application  of  either  party,  in  his  discretion,  provided 
the  same  be  in  the  interest  of  justice.  Unless  so  ap- 
proved, no  compensation  payments  shall  be  com- 
muted. 

"Agreement  or  award  may  he  modified.  An  agree- 
ment or  award  of  compensation  may  be  modified  at 
any  time  by  a  subsequent  agreement,  or  at  any  time 
after  one  year  from  the  time  when  the  same  became 
operative  it  may  be  reviewed  upon  the  application  of 
either  party  on  the  ground  that  the  incapacity  of  the 
injured  employ^  has  subsequently  increased  or  dimin- 
ished. In  such  case  the  provisions  of  paragraph  seven- 
teen with  reference  to  medical  examination  shall 
apply." 

OHIO 

(L.  1911,  c.  000) 

"  §  34,  The  board,  under  special  circumstances,  and 
when  the  same  is  deemed  advisable,  may  commute 


300    Bradbury's  workmen's  compensation  law 

Rhode  Island 

periodical  benefits  to  one  or  more  lump  sum  pay- 
ments." 


RHODE  ISLAND 

(Laws  1912,  c.  000) 

"Art.  II,  §  25.  Payment  of  lump  sum.  In  case  pay- 
ments have  continued  for  not  less  than  six  months 
either  party  may,  upon  due  notice  to  the  other  party, 
petition  the  superior  court  for  an  order  commuting 
the  future  payments  to  a  lump  sum.  Such  petition 
shall  be  considered  by  the  superior  court  and  may  be 
summarily  granted  where  it  is  shown  to  the  satisfac- 
tion of  the  court  that  the  payment  of  a  lump  sum  in 
lieu  of  future  weekly  payments  will  be  for  the  best 
interest  of  the  person  or  persons  receiving  or  depend- 
ent upon  such  compensation,  or  that  the  continuance 
of  weekly  payments  will,  as  compared  with  lump  sum 
payments,  entail  undue  expense  or  undue  hardship 
upon  the  employer  liable  therefor,  or  that  the  person 
entitled  to  compensation  has  removed  or  is  about  to 
remove  from  the  United  States.  Where  the  commuta- 
tion is  ordered  the  superior  court  shall  fix  the  lump 
sum  to  be  paid  at  an  amount  which  will  equal  the 
total  sum  of  the  probable  future  payments,  capitalized 
at  their  present  value  upon  the  basis  of  interest  cal- 
culated at  five  per  centum  per  annum  with  annual 
rests.  Upon  paying  such  amount  the  employer  shall 
be  discharged  from  all  further  liability  on  account  of 
the  injury  or  death,  and  be  entitled  to  a  duly  executed 
release,  upon  filing  which,  or  other  due  proof  of  pay- 
ment, the  liability  of  such  employer  under  any  agree- 
ment, award,  findings,  or  decree  shall  be  discharged 
of  record." 


(X)MMUTATION   OF   AWARD  301 

Washington 


WASHINGTON 

(L.  1911,  c.  74) 

"§  5  (j).  If  a  beneficiary  shall  reside  or  remove  out 
of  the  State  the  department  may,  in  its  discretion, 
convert  any  monthly  payments  provided  for  such 
case  into  a  lump  sum  payment  (not  in  any  case  to 
exceed  $4,000.00)  upon  the  theory,  according  to  the 
expectancy  of  life  as  fixed  by  the  American  Mortahty 
Table,  that  a  monthly  payment  of  $20.00  to  a  person 
thirty  j^ears  of  age  is  worth  $4,000.00,  or,  \vith  the 
consent  of  the  beneficiary,  for  a  smaller  sum. 

"(k)  Any  court  review  under  this  section  shall  be 
initiated  in  the  county  where  the  workman  resides  or 
resided  at  the  time  of  the  injury,  or  in  which  the  in- 
jury occurred." 

"§  7.  Conversion  into  lump  sum  payment.  In  case 
of  death  or  permanent  total  disability  the  monthly 
payment  provided  may  be  converted,  in  whole  or  in 
part,  into  a  lump  sum  payment  (not  in  any  case  to 
exceed  $4,000.00),  on  the  theory,  according  to  the 
expectancy  of  life  as  fixed  by  the  American  Mortahty 
Table,  that  a  monthly  payment  of  $20.00  to  a  person 
thirty  years  of  age  is  worth  the  sum  of  $4,000.00,  in 
which  event  the  monthly  payment  shall  cease  in  whole 
or  in  part  accordingly  or  proportionately.  Such  con- 
version may  only  be  made  after  the  happening  of  the 
injury  and  upon  the  written  application  of  the  bene- 
ficiary (in  case  of  minor  children,  the  application  may 
be  by  either  parent)  to  the  department,  and  shall  rest 
in  the  discretion  of  the  department.  Within  the  rule 
aforesaid  the  amount  and  value  of  the  lump  sum  pay- 
ment may  be  agreed  upon  between  the  department 
and  the  beneficiary." 


302    Bradbury's  workmen's  compensation  law 

Wisconsin 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-28.  Any  employer  against  whom  liability 
may  exist  for  compensation  under  this  act  may,  with 
the  approval  of  the  industrial  accident  board,  be  re- 
lieved therefrom  by: 

"1.  Depositing  the  present  value  of  the  total  un- 
paid compensation  for  which  such  liability  exists, 
assuming  interest  at  three  per  centum  per  annum, 
with  such  trust  company  of  this  State  as  shall  be 
designated  by  the  employe  (or  by  his  dependents,  in 
case  of  his  death,  and  such  liability  exists  in  their 
favor),  or  in  default  of  such  designation  by  him  (or 
them)  after  ten  days'  notice  in  writing  from  the  em- 
ployer, with  such  trust  company  of  this  State  as  shall 
be  designated  by  the  board;  or 

"2.  By  the  purchase  of  an  annuity,  within  the 
limitations  provided  by  law,  in  any  insurance  com- 
pany granting  annuities  and  licensed  in  this  State, 
which  may  be  designated  by  the  employ^,  or  his  de- 
pendents, or  the  board,  as  provided  in  subsection  1 
of  this  section." 


CHAPTER  XII 

DEFINITION  OF  PERMANENT  DISABILITY 

Page  Page 

California 303     New  Hampshire 304 

Illinois 303     New  Jersey 304 

Kansas 303     Ohio 304 

Massachusetts 303     Rhode  Island 304 

Michigan 304     Washington 305 

Nevada 304     Wisconsin 305 

CALIFORNIA 

(L.  1911,  c.  399) 

There  is  no  definition  of  permanent  or  total  disability 
in  the  California  Act. 

ILLINOIS 
(L.  1911,  c.  000) 
No  definition.    See  Chapter  IX,  ante,  page  256. 

KANSAS 

(L.  1911,  c.  218) 
The  Kansas  Act  contains  no  definition. 

MASSACHUSETTS 
(L.  1911,  c.  751) 

There  is  no  definition  in  the  Act. 

303 


304     Bradbury's  workmen's  compensation  law 

Rhode  Island 

MICHIGAN 

(L.  1912,  No.  3) 
The  Michigan  Act  contains  no  definition. 

NEVADA 
(L.  1911,  c.  183) 
See  §  6,  in  Chapter  IX,  ante,  page  263. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

There  is  no  definition  in  the  New  Hampshire  Act. 

NEW  JERSEY 
(L.  1911,  c.  95) 

See  Chapters  IX  (ante,  page  265)  and  X  (ante, 
page  288). 

OHIO 

(L.  1911,  c.  000) 

The  Ohio  Act  contains  no  definition  of  permanent 
Hability. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

There  are  specific  benefits  for  particular  injuries  of  a 
permanent  character  (Art.  II,  §  12,  Chapter  IX)  and  a 
definition  of  permanent  total  disability  in  Art.  II,  §  10. 
See  Chapter  IX,  ante,  page  266. 


DEFINITION    OF   PEEMANENT   DISABILITY  305 

Wisconsin 

WASHINGTON 

(L.  1911,  c.  74) 
See  §  5,  in  Chapter  IX,  ante,  page  269. 

WISCONSIN 

(L.  1911,  c.  50) 

There  is  no  definition  of  permanent  or  total  disa- 
bility in  the  Statute. 


20 


CHAPTER  XIII 

DEFINITION  OF  TEMPORARY  TOTAL  DISABILITY 

Page  Page 

California 306     New  HAMPSHraE 307 

Illinois 306     New  Jersey 307 

Kansas 306     Ohio 307 

Massachusetts 306     Rhode  Island 307 

Michigan 307     Washington 308 

Nevada 307     Wisconsin 308 

CALIFORNIA 

(L.  1911,  c.  399) 

There  is  no  definition  of  temporary  or  partial  dis- 
ability in  the  California  Act. 

ILLINOIS 

(L.  1911,  c.  000) 
No  definition.    See  Chapter  IX,  ante,  page  256. 

KANSAS 
(L.  1911,  c.  218) 
The  Kansas  Act  contains  no  definition. 

MASSACHUSETTS 
(L.  1911,  c.  751) 

There  is  no  definition  in  the  Act. 

306 


l>EFINITION    OF   TEMPORARY    TOTAL    DISABILITY      307 
Rhode  Island 

MICHIGAN 

(L.  1912,  No.  3) 
The  Michigan  Act  contains  no  definition. 

NEVADA 

(L.  1911,  c.  183) 
See  §  6,  Chapter  IX,  ante,  page  263. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 
There  is  no  definition  in  the  New  Hampshire  Act. 

NEW  JERSEY 

(L.  1911,  c.  95) 

See  Chapters  IX  (ante,  page  265)  and  X  (ante, 
page  288). 

OHIO 

(L.  1911,  c.  000) 

The  Ohio  Act  contains  no  definition  of  temporary 
total  disabiUty. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

There  is  no  definition  of  temporary  total  disability 
in  the  Act.  For  benefits  for  specific  injuries,  see  Art.  II, 
§  12,  in  Chapter  IX,  ante,  page  266. 


308    Bradbury's  workmen's  compensation  law 

Wisconsin 

WASHINGTON 
(L.  1911,  c.  74) 
See  §  5,  in  Chapter  IX,  ante,  page  269. 

WISCONSIN 
(L.  1911,  c.  50) 

There  is  no  definition  of  temporary  total  disability 
in  the  statute. 


CHAPTER  XIV 

DEFINITION  OF  PERMANENT  PARTIAL  DISABILITY 

Page  Page 

California 309  New  Hampshire 310 

Illinois 309  New  Jerbey 310 

Kansas 309  Ohio 310 

Massachusetts 309  Rhode  Island 310 

Michigan 310  Washington 311 

Nevada 310  Wisconsin 311 

CALIFORNU 
(L.  1911,  c.  399) 

There  is  no  definition  of  permanent  partial  disability 
in  the  California  Act. 

ILLINOIS 

(L.  1911,  c.  000) 
No  definition.    See  Chapter  X,  ante,  page  281. 

KANSAS 
(L.  1911,  c.  218) 
The  Kansas  Act  contains  no  definition. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

There  is  no  definition  in  the  Act. 

309 


310    Bradbury's  workmen's  compensation  law 

Rhode  Island 

MICHIGAN 
(L.  1912,  No.  3) 
The  Michigan  Act  contains  no  definition. 

NEVADA 

(L.  1911,  c.  183) 
See  §  6,  in  Chapter  IX,  finte,  page  263. 

NEW  HAMPSfflRE 

(L.  1911,  c.  000) 

There  is  no  definition  in  the  New  Hampshire  Act. 

NEW  JERSEY 
(L.  1911,  c.  95) 

See  Chapters  IX  {ante,  page  265)  and  X  {ante,  page 
288). 

OHIO 

(L.  1911,  c.  000) 

The  Ohio  Act  contains  no  definition  of  permanent 
partial  disabihty. 

RHODE  ISLAND 

)  (L.  1912,  c.  000) 

For  specific  benefits  for  injuries  of  a  permanent  na- 
ture, even  though  disabihty  may  only  be  partial,  see 
Art.  II,  §  12,  in  Chapter  IX,  ante,  page  266. 


DEFINITION    OF    PERMANENT    PARTIAL    DISABILITY      311 

Wisconsin 

WASHINGTON 

(L.  1911,  c.  74) 
See  §  5,  in  Chapter  IX,  ante,  page  269. 

WISCONSIN 

(L.  1911,  c.  50) 

There  is  no  definition  of  permanent  partial  disability 
in  the  statute. 


CHAPTER  XV 

DEFINITION  OF  TEMPORARY  PARTIAL  DISABILITY 

Page  Page 

California 312     New  Hampshire 313 

Illinois 312     New  Jersey 313 

Kansas 312     Ohio 313 

Massachusetts 312     Rhode  Island ,  313 

Michigan 312     Washington 313 

Nevada 313     Wisconsin 313 

CALIFORNIA 

(L.  1911,  c.  399) 

There  is  no  definition  of  temporary  partial  disability 
in  the  California  Act. 

ILLINOIS 

(L.  1911,  c.  000) 
No  definition.    See  Chapter  X,  ante,  page  281. 

KANSAS 

(L.  1911,  c.  218) 
The  Kansas  Act  contains  no  definition. 

MASSACHUSETTS 
(L.  1911,  c.  751) 
There  is  no  definition  in  the  Act. 

MICHIGAN 
(L.  1912,  No.  3) 

The  Michigan  Act  contains  no  definition. 

312 


DEFINITION   OF   TEMPORARY   PARTIAL   DISABILITY      313 
Wisconsin 


NEVADA 

(L.  1911,  c.  183) 
See  §  6,  in  Chapter  IX,  ante,  page  263. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 
There  is  no  definition  in  the  New  Hampshire  Act. 

NEW  JERSEY 

(L.  1911,  c.  95) 

See  Chapters  IX  {ante,  page  265)  and  X  {ante,  page 
288). 

OHIO 
(L.  1911,  c.  000) 
The  Ohio  Act  contains  no  definitions. 

RHODE  ISLAND 

(L.  1911,  c.  000) 

For  benefits  for  specific  injuries,  see  Art.  II,  §  12,  in 
Chapter  IX,  ante,  page  266.  There  is  no  definition  of 
temporary  partial  disabiUty  in  the  Act. 

WASHINGTON 

(L.  1911,  c.  74) 
See  §  5,  in  Chapter  IX,  ante,  page  269, 

WISCONSIN 

(L.  1911,  c.  50) 

There  is  no  definition  of  temporary  partial  dis- 
ability in  the  statute. 


CHAPTER  XVI 

WHO  ARE  DEPENDENTS 

Page 

1.  In  general 315 

2.  Dependent  of  more  than  one  workman 315 

3.  Partial  and  total  dependents  of  same  workman 316 

4.  Parents 316 

5.  Mother,  whose  husband  is  living,  as  dependent  of  son.  .  . .  317 

6.  Father  dependent  of  son;  allowance  for  son's  maintenance  317 

7.  Widow  and  children  dependents  of  father  when  other 

children  contribute  to  support  of  family. 318 

8.  Wife  separated  from  husband  before  his  death 318 

9.  Illegitimate  children 319 

10.  Parents  of  illegitimate  children 320 

11.  Posthumous  child 320 

12.  Posthumous  illegitimate  child 320 

13.  Mother  of  illegitimate  child  as  dependent  of  father  of  child  320 

14.  Aliens 321 

15.  Inmate  of  workhouse 321 

16.  Representative  of  deceased  dependent 322 

17.  Right  of  dependents  independent  of  that  of  deceased 323 

18.  Claim  by  dependents  when  compensation  to  workman  ter- 

minated before  death 323 

19.  Dependents  receiving  other  income  because  of  death  of 

workman 324 

20.  Question  of  dependency  is  one  of  fact 324 

21.  Necessity  of  administering  on  estate 324 

Page  Page 

California 324     New  Hampshire 328 

Illinois 325     New  Jersey 329 

Kansas 325     Ohio 329 

Massachusetts 326     Rhode  Island 329 

Michigan 327     Washington 330 

Nevada 328     Wisconsin 331 

314 


WHO   ARE    DEPENDENTS  315 

Dependent  of  more  than  one  workman 

1.  In  general. 

The  expression  "dependent"  means  dependent  for 
the  ordinary  necessaries  of  Ufe  for  a  person  of  that 
class  and  position  in  Ufe,  taking  into  account  the 
financial  and  social  position  of  the  recipient.  Whether, 
a  person  is  or  is  not  dependent  on  a  workman's  earnings 
is  a  question  of  fact.  Simmons  v.  White  Bros.  (1899), 
80  L.  T.  344;  1  W.  C.  C.  89.  The  test  of  dependency  is 
not  whether  the  family  could  support  life  without  the 
contributions  of  the  deceased,  but  whether  they  de- 
pended upon  them  as  part  of  their  income  or  means  of 
living.  Howells  v.  Vivian  and  Sons  (1901),  85  L.  T. 
529;  4  W.  C.  C.  106.  A  person  may  be  a  dependent  of 
a  deceased  workman  even  though  such  workman  has 
only  sent  money  at  irregular  intervals  and  in  irregular 
amounts.  Follis  v.  Schaake  Machine  Works  (1908),  13 
B.  C.471;1B.W.C.C.442. 

2,  Dependent  of  more  than  one  workman. 

One  person  can  be  the  dependent  of  more  than  one 
workman  and  in  case  of  death  of  two  or  more  workmen 
such  dependent  can  recover  more  than  the  maximum 
amount  allowed  for  the  death  of  one  workman.  (House 
of  Lords),  Hodgson  v.  Owners  of  West  Stanley  Colliery 
(1910),  102  L.  T.  194;  A.  C.  (H.  L.)  229;  3  B.  W.  C.  C. 
260.  In  the  last-mentioned  case  two  sons  and  their 
father,  out  of  a  family  of  ten,  were  killed  in  a  mine 
disaster.  The  wages  of  all  three  had  gone  into  a  com- 
mon fund  to  support  the  family  consisting  of  a  mother 
and  six  children  besides  those  who  were  killed.  None 
of  the  other  children  were  wage  earners.  It  was  held 
that  the  widow  was  entitled  to  a  death  benefit  by 
way  of  compensation  not  only  for  the  death  of  her 


316     Bradbury's  workmen's  compensation  law 

Parents 

husband  but  also  for  the  death  of  each  of  the  two 
sons. 

3.  Partial  and  total  dependents  of  same  workman. 

Partial  dependents  may  be  entitled  to  compensation 
although  there  are  others  who  were  wholly  dependent 
on  the  deceased  workman.  Robinson  v.  Anon  (1904), 
6  W.  C.  C.  117. 

4.  Parents. 

A  workman  who  was  drowned  at  sea  had  been  ac- 
customed in  previous  employments  to  give  money 
regularly  to  his  parents,  who,  with  their  family,  claimed 
compensation  as  dependents  of  the  deceased.  The 
judge  found  that  the  family  were  partly  dependent  on 
the  workman's  earnings,  and  awarded  compensation. 
On  appeal  it  was  held  that  dependency  is  a  question  of 
fact,  and  that  there  was  evidence  to  support  the  de- 
cision. Turner  and  Others  v.  Miller  and  Richards 
(1910),  3  B.  W.  C.  C.  305.  A  father  claimed  compen- 
sation as  a  dependent  of  his  son  who  had  paid  con- 
siderable sums  to  the  family  fund,  while  employed  as  a 
fisherman,  in  the  years  1906,  1907  and  1908.  The  last 
payment  was  made  early  in  1909.  In  the  summer  of 
that  year  he  made  two  voyages  of  a  month.  He  did 
not  send  any  part  of  his  wages  for  these  two  voyages, 
to  his  father,  and  on  the  last  of  these  voyages  he  was 
drowned.  It  was  held  that  there  was  evidence  to 
'justify  the  County  Court  judge  in  finding  that  the 
father  was  a  partial  dependent.  Robertson  v.  Hall 
'Brothers  Steamship  Co.  (1910),  3  B.  W.  C.  C.  368.  The 
deceased  was  a  boy  of  sixteen  earning  8s.  a  week,  which 
he  gave  to  his  parents,  they  providing  him  with  food, 
clothes,  etc.     His  father  was  a  collier  earning  25s.  a 


WHO   ARE    DEPENDENTS  317 

Father  dependent  of  son 

week,  and  there  were  five  other  children,  two  of  whom 
contributed  their  earnings,  the  one  12s.  and  the  other 
7s.  6d.  a  week,  to  swell  the  common  fund.  It  was  held 
that  the  parents  were  dependent  upon  the  earnings  of 
the  deceased.  The  Main  Colliery  Co.  v.  Davies  (1900), 
SOL.  T.674;2W.  C.  C.  108. 

6.  Mother,  whose  husband  is  living,  as  dependent  of 
son. 

A  boy  was  killed.  His  mother  was  supported  by  her 
husband  but  claimed  compensation  as  a  partial  de- 
pendent because  the  boy's  earnings  were  paid  into  the 
family  fund.  It  was  held  by  the  House  of  Lords  that 
compensation  should  be  awarded.  McLean  v.  Moss 
Bay  Haematite  Iron  and  Steel  Co.  (1910),  3  B.  W.  C.  C. 
402;  following  Hodgson  v.  Owners  of  West  Stanley 
Colliery,  3  B.  W.  C.  C.  260. 

6.  Father  dependent  of  son;  allowance  for  son's 
maintenance. 
The  applicant  was  the  father  of  a  workman  who  met 
with  a  fatal  accident.  At  the  time  of  his  death  the 
workman  was  aged  fourteen  years.  His  wages  were 
6s.  lid.  per  week,  which  were  given  to  his  father  and 
helped  to  maintain  the  family.  The  father  worked  at 
a  colliery,  and  supplemented  his  earnings  by  carrying 
on  the  trade  of  a  barber  on  certain  evenings  and  part 
of  Saturday.  The  deceased  used  to  assist  his  father 
as  a  barber,  and  the  father  estimated  his  services  as 
worth  6s.  per  week.  The  County  Court  judge  held 
that  the  father  was  not  a  dependent  or  partial  de- 
pendant, inasmuch  as  the  6s.  lid.  was  not  more  than 
sufficient  to  maintain  the  deceased.     The  decision  of 


318     Bradbury's  workmen's  compensation  law 

Wife  separated  from  husband  before  his  death 

the  County  Court  judge  was  reversed  by  the  Court  of 
Appeal,  holding  that  in  case  of  partial  dependency,  it 
was  not  legitimate  to  have  regard  to  the  amount  which 
the  maintenance  of  the  deceased  would  have  cost. 
Hall  V.  Tamworth  Colliery  Co.  (1910),  4  B.  W.  C.  C. 
107.  The  decision  of  the  Court  of  Appeal  was  reversed 
by  the  House  of  Lords,  however,  where  it  was  held  that 
in  determining  the  question  of  fact  as  to  the  father's 
dependency  on  the  son,  the  County  Court  judge  should 
consider  both  the  cost  of  the  maintenance  of  the  son  and 
the  value  to  the  father  of  the  son's  services  in  the 
barber  business.  Tamworth  Colliery  Co.  v.  Hall  (1911), 
4  B.  W.  C.  C.  313. 

7.  Widow  and  children  dependents  of  father  when 

other  children  contribute  to  support  of  family. 

The  earnings  of  a  father  and  a  portion  of  the  earn- 
ings of  three  of  the  elder  children  were  used  to  support 
the  family  consisting  of  those  mentioned,  a  wife,  and 
several  younger  children,  who  did  not  work.  Upon  the 
death  of  the  father  it  was  held  that  the  widow  and  the 
younger  children  were  wholly  dependent  upon  the 
father  for  support,  within  the  meaning  of  the  Com- 
pensation Act.  Senior  v.  Fountains  &  Burnley  (1907), 
23  T.  L.  R.  634;  9  W.  C.  C.  116. 

8.  Wife  separated  from  husband  before  his  death. 

Where  husband  and  wife  were  voluntarily  living 
apart  and  the  wife  was  earning  her  own  living  at  the 
time  of  his  death  and  did  not  receive  any  support  from 
him  whatsoever  prior  to  his  death,  it  was  held  by  the 
House  of  Lords,  reversing  the  Court  of  Appeal  and 
County  Court  that  the  widow  was  not  entitled  to  com- 


WHO   ARE   DEPENDENTS  319 

Illegitimate  children 

pensation.  The  rule  was  laid  down  that  the  mere  fact 
that  a  man  m  ordinary  circumstances  is  Hable  to 
support  his  wife  in  law,  is  not  of  itself  sufficient  evidence 
to  support  a  claim  for  compensation  by  his  widow; 
that  the  obligation  or  liability  to  support  is  not  the 
same  as  actual  support.  Lord  Robson  declared: 
''Money  coming  to  a  widow  under  the  Act  is  not  a 
present  in  consideration  of  her  status;  it  is  a  payment 
by  a  third  person  to  compensate  her,  as  a  dependent, 
for  her  actual  pecuniary  loss  by  her  husband's  death 
and  *  *  *  there  is  no  rule  of  law  to  prevent  the 
arbitrator  from  finding  that,  though  married  to  the 
deceased,  the  applicant  was  not  in  fact  dependent  upon 
him."  New  Monckton  Collieries  v.  Keeling  (1911),  4 
B.  W.  C.  C.  332,  reversing  Keeling  v.  New  Monckton 
Collieries  (1910),  4  B.  W.  C.  C.  49.  Where  a  woman 
left  her  husband  because  of  cruel  treatment  and  had 
lived  apart  from  him  and  supported  herself  and  a  child 
for  about  twelve  years  prior  to  the  husband's  death,  it 
was  held  that  she  was  not  a  dependent  and  was  not 
entitled  to  compensation  upon  the  death  of  the  husband 
through  accident.  Lindsay  v.  M'Glashen  &  Son  (1908), 
45  Scotch  L.  R.  559;  1  B.  W.  C.  C.  85.  A  wife  who  had 
been  turned  out  of  her  home  by  her  husband  and  had 
not  been  Uving  with  or  supported  by  him  for  eleven 
years  before  his  death,  but  who  had  made  endeavors 
to  obtain  support,  was  held  to  be  in  part  dependent 
upon  her  husband's  earnings  at  the  time  of  his  death 
and  therefore  entitled  to  compensation.  Medler  v. 
Medler  (1908),  1  B.  W.  C.  C.  332. 

9.  Illegitimate  children. 
An  illegitimate  child  who  was  taken  in  charge  by  a 


320     Bradbury's  workmen's  compensation  law 

Mother  of  illegitimate  child 

friend  of  the  mother,  was  held  not  to  be  a  dependent 
of  the  mother  who  was  killed  by  an  accident.  Briggs  v. 
Mitchell  (1911),  48  Scotch  L.  R.  606;  4  B.  W.  C.  C.  400. 
But  see  Schofield  v.  Orrell  Colliery  Co.  (1908),  100  L. 
T.  104;  2  B.  W.  C.  C.  301,  cited  in  paragraph  12,  below. 

10.  Parents  of  illegitimate  children. 

Neither  the  mother  nor  the  putative  father  of  an 
illegitimate  child  are  entitled  to  compensation  upon 
the  death  of  the  child,  especially  where  the  mother  is 
living  with  and  being  supported  by  her  husband. 
McLean  v.  Moss  Bay  Hematite  Iron  and  Steel  Co.  (1909), 
100  L.  T.  871;  2  B.  W.  C.  C.  282. 

11.  Posthumous  child. 

A  posthumous  child  may  be  a  dependent  of  a  de- 
ceased workman  and  entitled  to  compensation.  (House 
of  Lords),  Villar  v.  Gilbey  (1907),  A.  C.  139;  Williams 
V.  Ocean  Coal  Co.  (1907),  97  L.  T.  150;  9  W.  C.  C.  44. 
An  unborn  child  is  dependent  upon  the  earnings  of  the 
father.    Day  v.  Markham  (1904),  6  W.  C.  C.  115. 

12.  Posthumous  illegitimate  child. 

A  posthumous  illegitimate  child  may  be  a  dependent 
and  entitled  to  compensation  for  the  death  of  the 
father  of  the  child.  Schofield  v.  Orrell  Colliery  Co. 
(1908),  100  L.  T.  104;  2  B.  W.  C.  C.  301. 

13.  Mother  of   illegitimate  child   as  dependent   of 
father  of  child. 

The  mother  of  an  illegitimate  child  who  has  ob- 
tained an  order  of  filiation  against  the  father  of  the 
child  is  entitled  to  compensation  on  behalf  of  the 


WHO   ARE    DEPENDENTS  321 

Inmate  of  workhouse 

child,  upon  the  death  of  the  father  through  an  accident, 
even  though  the  father  had  evaded  payment  of  the 
amount  awarded  in  the  fihation  proceeding,  by  chang- 
ing his  name  and  conceaUng  his  identity.  Bowhill  Coal 
Co.  V.  Neish  and  Others  (1908),  46  Scotch  L.  R.  250; 
2  B.  W.  C.  C.  253.  Where  a  man  and  woman  hold 
themselves  out  to  the  world  to  be  married  and  the 
man  is  killed  by  accident,  it  seems  that  the  woman  and 
her  child  may  recover  compensation  upon  sufficient 
evidence  being  given  of  a  common-law  marriage. 
Fife  Coal  Co.  v.  Wallace  (1909),  46  Scotch  L.  R.  727;, 
2  B.  W.  C.  C.  264. 

14.  Aliens.* 

The  benefits  of  the  British  Columbia  Act  do  not 
extend  to  alien  dependents  residing  abroad,  where  the 
workman  is  killed  in  British  Columbia.  Krzus  v. 
Crow's  Nest  Pass  Coal  Co.  (1911),  4  B.  W.  C.  C. 
469.  Where  there  is  no  special  provision  in  the  Act 
relative  to  the  residence  of  dependents,  it  is  no  objec- 
tion to  a  claim  for  compensation  by  dependents  that 
they  are  alien  residents  of  a  foreign  country.  Varesick 
V.  British  Columbia  Copper  Co.  (1906),  12  B.  C.  286; 
1  B.  W.  C.  C.  446. 

15.  Inmate  of  workhouse. 

A  person  in  a  workhouse  is  not  necessarily  dependent 
on  the  earnings  of  another  because  that  other  is  legally 
liable  to  contribute  to  the  cost  of  his  maintenance. 
Rees  V.  Penrikyber  Navigation  Colliery  Co.  (1902),  87 
L.  T.  661;5W.  C.  C.  117. 

*  The  various  acts  of  the  States  of  the  Union  have  special  pro- 
visions on  this  subject. 
21 


322     bkadbury's  workmen's  compensation  law 

Representative  of  deceased  dependent 

16.  Representative  of  deceased  dependent. 

Where  a  dependent  dies  without  having  made  claim 
for  compensation  under  the  Act,  the  legal  representa- 
tives of  such  dependent  may  claim  compensation  as 
the  right  to  make  claim  became  vested  in  the  dependent 
at  the  time  of  the  death  of  the  workman  and  survived 
to  the  legal  representatives  of  the  dependent.  (House 
of  Lords),  United  Collieries  v.  Hendry  (1909),  101  L.  T. 
129;  A.  C.  (H.  L.)  383;  2  B.  W.  C.  C.  308.  Where  a 
widow,  of  a  workman  whose  death  has  been  caused 
by  accident  in  his  master's  service,  makes  application 
for  compensation  and  subsequently  dies  the  personal 
representative  of  such  widow  can  recover  the  same 
compensation  that  the  widow  could  have  recovered 
even  though  such  representative  is  not  a  dependent  of 
the  deceased  workman.  Darlington  v.  Roscoe  &  Sons 
(1910),  96  L.  T.  179;  9  W.  C.  C.  1.  The  court  discusses 
but  does  not  decide  the  question  of  whether  or  not  the 
representative  of  the  widow  could  have  recovered  if  the 
widow  had  not  applied  for  compensation  before  her 
death.  The  court  discussed  the  Irish  case  of  O'Don- 
ovan  V.  Cameron,  Swan  &  Co.  (1901),  2  Irish  R.  633; 
wherein  it  was  held  that  the  personal  representative  of 
a  deceased  dependent  who  had  not  made  application 
for  compensation  before  her  death  could  not  recover, 
and  distinguished  the  two  cases  on  the  ground  that  in 
one  the  dependent  had  made  claim  for  compensation 
before  her  death  and  in  the  other  she  had  not  made 
such  claim. 

The  right  of  a  mother  to  claim  compensation  be- 
cause of  the  death  of  her  son,  upon  whom  she  was 
dependent,  vests  in  her  at  the  time  of  her  son's  death 
and  the  personal  representatives  of  the  mother  can 


•WTIO   ARE   DEPENDENTS  323 

When  compensation  to  workman  terminated  before  death 

maintain  a  proceeding  for  such  compensation,  even 
though  the  mother  failed  to  take  proceedings  during 
her  Hfetime.  Hendry  v.  United  Collieries  (1908),  45 
Scotch  L.  R.  944;  1  B.  W.  C.  C.  289. 

17.  Right  of  dependents  independent  of  that  of  de- 
ceased. 

A  workman  was  injured  by  accident.  He  gave 
notice  of  injury,  asking  his  employers  to  treat  it  as  a 
notice  under  the  Employers'  Liability  and  Workmen's 
Compensation  Acts.  His  employers  settled  with  him 
for  a  lump  sum,  obtaining  a  receipt  releasing  them 
from  all  liability  under  the  Employers'  Liability  Act 
and  at  common  law.  The  workman  died  and  his 
dependents  claimed  under  the  Workmen's  Compensa- 
tion Act,  subject  to  the  deduction  of  the  sum  paid  under 
the  settlement.  The  County  Court  judge  found  as  a 
fact  that  there  was  no  bona  fide  settlement  and  made 
an  award  in  favor  of  the  dependents.  It  was  held  that 
the  right  of  the  dependents  was  independent  of,  and 
not  derived  from,  that  of  the  deceased,  and  that  they 
were  therefore  entitled  to  recover.  Howell  v.  Bradford 
&  Co.  (1911),  104  L.  T.  433;  4  B.  W.  C.  C.  203. 

18.  Claim   by    dependents    when    compensation    to 
workman  terminated  before  death. 

A  workman  was  injured,  and  received  compensation. 
A  memorandum  of  agreement  to  pay  him  compensation 
was  filed,  and  on  an  application  to  review  the  payments 
thereunder  were  terminated.  Subsequently  the  man 
died  and  his  dependents  applied  for  compensation.  It 
was  held  that  the  award  terminating  the  rights  of  the 
workman  was  not  a  bar  to  the  claim  by  the  dependents. 
Johson  V.  W.  Cory  &  Sons  (1911),  4  B.  W.  C.  C.  284. 


324    Bradbury's  workmen's  compensation  law 

California 

19.  Dependents  receiving  other  income  because  of 

death  of  workman. 

Moneys  coming  to  dependents  on  the  death  of  a 

workman  do  not  affect  the  question  of  whether  or  not 

•they  were  dependent  upon  his  earnings  at  the  time  of 

his  death.    Pryce  v.  Penrikyher  Navigation  Colliery  Co. 

(1901),  85  L.  T.  477;  4  W.  C.  C.  115. 

20.  Question  of  dependency  is  one  of  fact. 

''The  question  of  dependency  is  not  a  question  of 
law  at  all.  It  is  purely  a  question  of  fact."  Main 
Colliery  Co.  v.  Davies  (1900),  A.  C.  358;  1  W.  C.  C.  92; 
2  W.  C.  C.  108;  Hodgson  v.  Owners  of  West  Stanley 
Colliery  (1910),  A.  C.  (H.  L.)  229;  102  L.  T.  194;  3  B. 
W.  C.  C.  260.  Both  of  the  above  cases  were  decided  in 
the  House  of  Lords. 

21.  Necessity  of  administering  on  estate. 

It  is  not  necessary  for  a  dependent  to  take  out 
letters  of  administration  to  the  estate  of  deceased. 
Clatworthy  v.  R.  &  H.  Green  (1902),  86  L.  T.  702;  4  W. 
C.  C.  152. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§9  (3)  The  following  shall  be  conclusively  pre- 
sumed to  be  solely  and  wholly  dependent  for  support 
upon  a  deceased  employ^: 

"  (a)  A  wife  upon  a  husband. 

"(b)  A  husband  upon  a  wife  upon  whose  earnings 
he  is  partially  or  wholly  dependent  at  the  time  of  her 
death, 

"  (c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally 


WHO   ARE   DEPENDENTS  325 

Kansas 

incapacitated  from  earning),  upon  the  parent  with 
whom  he  or  they  are  Uving  at  the  time  of  the  death  of 
such  parent,  there  being  no  surviving  dependent 
parent.  In  case  there  is  more  than  one  child  thus  de- 
pendent, the  death  benefit  shall  be  divided  equally 
among  them.  In  all  other  cases  questions  of  entire  or 
partial  dependency  shall  be  determiried  in  accordance 
with  the  fact,  as  the  fact  may  be  at  the  time  of  the 
death  of  the  employ^,  and  in  such  other  cases  if  there 
is  more  than  one  person  wholly  dependent,  the  death 
benefit  shall  be  divided  equally  among  them  and  per- 
sons partially  dependent,  if  any,  shall  receive  no  part 
thereof,  and  if  there  is  more  than  one  person  partially 
dependent,  the  death  benefit  shall  be  divided  among 
them  according  to  the  relative  extent  of  their  de- 
pendency. 

"  (4)  Questions  as  to  who  constitute  dependents  and 
the  extent  of  their  dependency  shall  be  determined  as 
of  the  date  of  the  death  of  the  employ^,  and  their 
right  to  any  death  benefit  shall  become  fixed  as  of 
such  time,  irrespective  of  any  subsequent  change  in 
conditions,  and  the  death  benefit  shall  be  directly 
recoverable  by  and  payable  to  the  dependent  or  de- 
pendents entitled  thereto  or  their  legal  guardians  or 
trustees." 

ILLINOIS 

(L.  1911,  c.  000) 
See  §§  4  a  and  e,  in  Chapter  VIII,  ante,  page  214. 

KANSAS 

(L.  1911,  0.  218) 

"§  9  0)-  'Dependents'  means  such  members  of  the 
workman's  family  as  were  wholly  or  in  part  dependent 


326    Bradbury's  workmen's  compensation  law 

Massachusetts 

upon  the  workman  at  the  time  of  the  accident.  And 
'members  of  a  family'  for  the  purposes  of  this  act 
means  only  widow  or  husband,  as  the  case  may  be, 
and  children;  or  if  no  widow,  husband  or  children, 
then  parents  and  grandparents,  or  if  no  parents  or 
grandparents,  then  grandchildren;  or  if  no  grand- 
children, then  brothers  and  sisters.  In  the  meaning 
of  this  section  parents  include  step-parents,  children 
include  step-children,  and  grandchildren  include  step- 
grandchildren,  and  brothers  and  sisters  include  step- 
brothers and  step-sisters,  and  children  and  parent 
include  that  relation  by  legal  adoption." 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  II,  §  7.  The  following  persons  shall  be  con- 
clusively presumed  to  be  wholly  dependent  for  support 
upon  a  deceased  employe: 

"(a)  A  wife  upon  a  husband  with  whom  she  lives 
at  the  time  of  his  death. 

"(b)  A  husband  upon  a  wife  with  whom  he  lives  at 
the  time  of  her  death. 

"(c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally 
incapacitated  from  earning)  upon  the  parent  with 
whom  he  is  or  they  are  living  at  the  time  of  the  death 
of  such  parent,  there  being  no  surviving  dependent 
parent.  In  case  there  is  more  than  one  child  thus  de- 
pendent, the  death  benefit  shall  be  divided  equally 
among  them. 
I  "In  all  other  cases  questions  of  dependency,  in 

whole  or  in  part,  shall  be  determined  in  accordance 
with  the  fact,  as  the  fact  may  be  at  the  time  of  the 
injury;  and  in  such  other  cases,  if  there  is  more  than 
one  person  wholly  dependent,  the  death  benefit  shall 


WHO   ARE   DEPENDENTS  327 

Michigan 

be  divided  equally  among  them,  and  persons  partly 
dependent,  if  an/,  shall  receive  no  part  thereof;  if 
there  is  no  one  wholly  dependent  and  more  than  one 
person  partly  dependent,  the  death  benefit  shall  be 
divided  among  them  according  to  the  relative  extent 
of  their  dependency." 

MICHIGAN 
(L.  1912,  No.  3) 

"Part  II,  §  6.  The  following  persons  shall  be  con- 
clusively presumed  to  be  wholly  dependent  for  support 
upon  a  deceased  employ^: 

"(a)  A  wife  upon  a  husband  with  whom  she  lives 
at  the  time  of  his  death ; 

"  (6)  A  husband  upon  a  wife  with  whom  he  lives  at 
the  time  of  her  death; 

"(c)  A  child  or  children  under  the  age  of  sixteen 
years  (or  over  said  age,  if  physically  or  mentally  in- 
capacitated from  earning)  upon  the  parent  with  whom 
he  is  or  they  are  living  at  the  time  of  the  death  of  such 
parent,  there  being  no  surviving  parent.  In  case  there 
is  more  than  one  child  thus  dependent,  the  death 
benefit  shall  be  divided  equally  among  them.  In  all 
other  cases  questions  of  dependency,  in  whole  or  in 
part,  shall  be  determined  in  accordance  with  the  fact, 
as  the  fact  may  be  at  the  time  of  the  injury;  and  in 
such  other  cases,  if  there  is  more  than  one  person 
wholly  dependent,  the  death  benefit  shall  be  divided 
equally  among  them,  and  persons  partly  dependent, 
if  any,  shall  receive  no  part  thereof;  if  there  is  no  one 
wholly  dependent  and  more  than  one  person  partly 
dependent,  the  death  benefit  shall  be  divided  among 
them  according  to  the  relative  extent  of  their  depend- 
ency. No  person  shall  be  considered  a  dependent,  un- 
less a  member  of  the  family  of  the  deceased  employ^, 


328     Bradbury's  workmen's  compensation  law 

New  Hampshire 

or  bears  to  him  the  relation  of  husband  or  widow,  or 
lineal  descendant,  or  ancestor,  or  brother,  or  sister. 

"  §  7.  Questions  as  to  who  constitute  dependents 
and  the  extent  of  their  dependency  shall  be  deter- 
mined as  of  the  date  of  the  accident  to  the  employ^, 
and  their  right  to  any  death  benefit  shall  become 
fixed  as  of  such  time,  irrespective  of  any  subsequent 
change  in  conditions;  and  the  death  benefit  shall  be 
directly  recoverable  by  and  payable  to  the  dependent 
or  dependents  entitled  thereto,  or  their  legal  guard- 
ians or  trustees.  In  case  of  the  death  of  one  such 
dependent  his  proportion  of  such  compensation  shall 
be  payable  to  the  surviving  dependents  pro  rata. 
Upon  the  death  of  all  such  dependents  compensation 
shall  cease.  No  person  shall  be  excluded  as  a  de- 
pendent who  is  a  non-resident  alien.  No  dependent 
of  an  injured  employ^  shall  be  deemed,  during  the  life 
of  such  employ^,  a  party  in  interest  to  any  proceeding 
by  him  for  the'  enforcement  of  collection  of  any  claim 
for  compensation,  nor  as  respects  the  compromise 
thereof  by  such  employ^.'* 

NEVADA 

(L.  1911,  c.  183) 

"'Dependents'  means  wife,  father,  mother,  hus- 
band, sister,  brother,  child  or  grandchild;  provided, 
that  they  were  wholly  or  partly  dependent  upon  the 
earnings  of  the  workman  at  the  time  of  his  death." 
§  1.    See  Chapter  II,  ante,  page  150. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

''Widow,  children,  or  parents  resident  of  this  State." 
See  §  6,  in  Chapter  VIII,  ante,  page  221. 


J 


WHO   ARE   DEPENDENTS  329 


Rhode  Island 


NEW  JERSEY 
(L.  1911,  c.  95) 
See  Chapter  VIII,  ante,  page  222. 

OHIO 

(L.  1911,  c.  000) 

"§29.  Benefits — to  whom  paid.  The  benefits,  in 
case  of  death,  shall  be  paid  to  such  one  or  more  of  the 
dependents  of  the  decedent,  for  the  benefit  of  all  the 
dependents,  as  may  be  determined  by  the  Board, 
which  may  apportion  the  benefits  among  the  depend- 
ents in  such  manner  as  it  may  deem  just  and  equitable. 
Payment  to  a  dependent  subsequent  in  right  may  be 
made,  if  the  Board  deem  proper,  and  shall  operate  to 
discharge  all  other  claims  therefor. 

"§30.  The  dependent  or  person  to  whom  benefits 
are  paid  shall  apply  the  same  to  the  use  of  the  several 
beneficiaries  thereof  according  to  their  respective 
claims  upon  the  decedent  for  support,  in  compliance 
with  the  finding  and  direction  of  the  Board." 

RHODE  ISLAND 

(L.  1912,  0.  000) 

"Art.  II,  §  7.  Dependents.  The  following  persons 
shall  be  conclusively  presumed  to  be  wholly  de- 
pendent for  support  upon  a  deceased  employ^: — 

"  (a)  A  wife  upon  a  husband  with  whom  she  lives 
or  upon  whom  she  is  dependent  at  the  time  of  his 
death. 

"(b)  A  husband  upon  a  wife  with  whom  he  lives  or 
upon  whom  he  is  dependent  at  the  time  of  her  death. 

"(c)  A  child  or  children,  including  adopted  and 


330     Bradbury's  workmen's  compensation  law 


Washington 


stepchildren,  under  the  age  of  eighteen  years,  or  over 
said  age,  but  physically  or  mentally  incapacitated 
from  earning,  upon  the  parent  with  whom  he  is  or 
they  are  living  or  upon  whom  he  or  they  are  dependent 
at  the  time  of  the  death  of  such  parent,  there  being  no 
surviving  dependent  parent.  In  case  there  is  more 
than  one  child  thus  dependent,  the  compensation 
thereunder  shall  be  divided  equally  among  them. 

"In  all  other  cases  questions  of  entire  or  partial 
dependency  shall  be  determined  in  accordance  with 
the  fact  as  the  fact  may  have  been  at  the  time  of  the 
injury.  In  such  other  cases,  if  there  is  more  than  one 
person  wholly  dependent,  the  compensation  shall  be 
divided  equally  among  them,  and  persons  partly  de- 
pendent, if  any,  shall  receive  no  part  thereof  during 
the  period  in  which  compensation  is  paid  to  persons 
wholly  dependent.  If  there  is  no  one  wholly  depend- 
ent and  more  than  one  person  partly  dependent,  the 
compensation  shall  be  divided  among  them  according 
to  the  relative  extent  of  their  dependency. 

"  §  8.  Dependents — how  determined.  No  person  shall 
be  considered  a  dependent  unless  he  is  a  member  of 
the  employe's  family  or  next  of  kin  wholly  or  partly 
dependent  upon  the  wages,  earnings  or  salary  of  the 
employ^  for  support  at  the  time  of  the  injury." 

WASHINGTON 

(L.  1911,  c.  74) 

"I  3  *  *  *  Dependent  means  any  of  the  follow- 
ing named  relatives  of  a  workman  whose  death  results 
from  any  injury  and  who  leaves  surviving  no  widow, 
widower,  or  child  under  the  age  of  sixteen  years,  viz. : 
invalid  child  over  the  age  of  sixteen  years,  daughter, 
between  sixteen  and  eighteen  years  of  age,  father, 


WHO   ARE    DEPENDENTS  331 

Wisconsin 

mother,  grandfather,  grandmother,  step-father,  step- 
mother, grandson,  granddaughter,  step-son,  step- 
daughter, brother,  sister,  half-sister,  half-brother, 
niece,  nephew,  who,  at  the  time  of  the  accident,  are 
dependent,  in  whole  or  in  part,  for  their  support  upon 
the  earnings  of  the  workman.  Except  where  other- 
wise provided  by  treaty,  aliens,  other  than  father  or 
mother,  not  residing  within  the  United  States  at  the 
time  of  the  accident,  are  not  included. 

"Beneficiary  means  a  husband,  wife,  child  or  de- 
pendent of  a  workman,  in  whom  shall  vest  a  right  to 
receive  payment  under  this  act. 

"Invalid  means  one  who  is  physically  or  mentally 
incapacitated  from  earning. 

"The  word  'child,'  as  used  in  this  act,  includes  a 
posthumous  child,  a  child  legally  adopted  prior  to 
the  injury,  and  an  illegitimate  child  legitimated  prior 
to  the  injury." 

"§  5.  (i)  A  husband  or  wife  of  an  injured  workman, 
living  in  a  state  of  abandonment  for  more  than  one 
year  at  the  time  of  the  injury  or  subsequently,  shall 
not  be  a  beneficiary  under  this  act." 


WISCONSIN 

(L.  1911,  c.  50) 

"§2394^10.  (3.)  The  following  shall  be  conclusively 
presumed  to  be  solely  and  wholly  dependent  for  sup- 
port upon  a  deceased  employe : 

"  (a)  A  wife  upon  a  husband  with  whom  she  is  living 
at  the  time  of  his  death. 

"  (6)  A  husband  upon  a  wife  with  whom  he  is  living 
at  the  time  of  her  death. 

"(c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally 


332     Bradbury's  workmen's  compensation  law 

Wisconsin 

incapacitated  from  earning),  upon  the  parent  with 
whom  he  or  they  are  Uving  at  the  time  of  the  death  of 
such  parent,  there  being  no  surviving  dependent 
parent.  In  case  there  is  more  than  one  child  thus  de- 
pendent, the  death  benefit  shall  be  divided  equally 
among  them. 

"In  all  other  cases  questions  of  entire  or  partial 
dependency  shall  be  determined  in  accordance  with 
the  fact,  as  the  fact  may  be  at  the  time  of  the  death  of 
the  employ^;  and  in  such  other  cases,  if  there  is  more 
than  one  person  wholly  dependent,  the  death  benefit 
shall  be  divided  equally  among  them,  and  persons 
partially  dependent,  if  any,  shall  receive  no  part 
thereof;  and  if  there  is  more  than  one  person  partially 
dependent,  the  death  benefit  shall  be  divided  among 
them  according  to  the  relative  extent  of  their  depend- 
ency. 

"4.  No  person  shall  be  considered  a  dependent  un- 
less a  member  of  the  family  of  the  deceased  employ^, 
or  bears  to  him  the  relation  of  husband  or  widow,  or 
lineal  descendant,  or  ancestor,  or  brother,  or  sister. 

"5.  Questions  as  to  who  constitute  dependents  and 
the  extent  of  their  dependency  shall  be  determined  as 
of  the  date  of  the  accident  to  the  employ^,  and  their 
right  to  any  death  benefit  shall  become  fixed  as  of  such 
time,  irrespective  of  any  subsequent  change  in  con- 
ditions; and  the  death  benefit  shall  be  directly  recover- 
able by  and  payable  to  the  dependent  or  dependents 
entitled  thereto  or  their  legal  guardians  or  trustees; 
provided  that  in  case  of  the  death  of  a  dependent 
whose  right  to  a  death  benefit  has  thus  become  fixed, 
so  much  of  the  same  as  is  then  unpaid  shall  be  re- 
coverable by  and  payable  to  his  personal  representa- 
tive in  gross.  No  person  shall  be  excluded  as  a  de- 
pendent who  is  a  non-resident  alien. 


WHO   ARE   DEPENDENTS  333 

Wisconsin 

"6.  No  dependent  of  an  injured  employ^  shall  be 
deemed,  during  the  life  of  such  employ^,  a  party  in 
interest  to  any  proceeding  by  him  for  the  enforcement 
or  collection  of  any  claim  for  compensation,  nor  as 
respects  the  compromise  thereof  by  such  employ^." 


CHAPTER  XVII 

DEFINITIONS  NOT  OTHERWISE  CLASSIFIED 

Page  Page 

California 334  New  Hampshire 339 

Illinois 334  New  Jersey 339 

Kansas 335  Ohio 340 

Massachusetts 337  Rhode  Island 340 

Michigan 339  Washington 341 

Nevada 339  Wisconsin 341 

''It  ought  to  be  remembered  that  the  Workmen's 
Compensation  Acts  are  expressed  not  in  technical  but 
in  popular  language,  and  ought  to  be  construed  not  in 
a  technical  but  in  a  popular  sen^e."  Smith  v.  Coles 
(1905),  2  K.  B.  827;  8  W.  C.  C.  116;  Rogers  v.  Cardiff 
Corporation,  8  W.  C.  C.  51.  "We  have  been  told  by 
the  House  of  Lords  to  give  the  terms  used  in  the  Work- 
men's Compensation  Act,  their  practical,  popular  mean- 
ing, and  not  to  put  a  technical  construction  on  them." 
Adams  v.  Shaddock  (1905),  2  K.  B.  859;  8  W.  C.  C.  58. 

CALIFORNIA 

(L.  1911,  c.  399) 

For  definitions  of  employers  and  employes  see  Chap- 
ter II,  ante,  page  132,  and  §§  4  and  7  of  the  Act  in  that 
Chapter. 

,  ILLINOIS 

(L.  1911,  c.  000) 

"§21.  The  term  'eraploy6'  as  used  in  this  Act  shall 
be  held  to  include  only  such  persons  as  may  be  exposed 
334 


DEFINITIONS   NOT   OTHERWISE    CLASSIFIED         335 
Kansas 

to  the  necessary  hazards  of  carrying  on  any  employ- 
ment or  enterprise  referred  to  in  Section  2  of  this  Act. 
Persons  whose  employment  is  of  a  casual  nature  and 
who  are  employed  otherwise  than  for  the  purpose  of 
the  employer's  trade  or  business,  are  not  included  in 
the  foregoing  definition. 

"§  22.  Section  21  shall  not  be  construed  to  include 
any  employe  engaged  in  any  work  of  an  incidental 
character  unconnected  with  the  dangers  necessarily 
involved  in  carrying  on  any  employment  or  enterprise 
referred  to  in  Section  2,  or  in  any  work  of  a  clerical  or 
administrative  nature  which  does  not  expose  the  em- 
ploye to  the  inherent  hazards  of  any  such  employment 
or  enterprise. 

KANSAS 
(L.  1911,  c.  218) 

"§9.  Definitions.  In  this  Act,  unless  the  context 
otherwise  requires. 

"(a)  'Railway'  includes  street  railways  and  in- 
terurbans;  and  'employment  on  railways'  includes 
work  in  depots,  power  houses,  round-houses,  machine 
shops,  yards,  and  upon  the  right  of  way,  and  in  the 
operation  of  its  engines,  cars  and  trains,  and  to  em- 
ployes of  express  companies  while  running  on  rail- 
road trains. 

"  (6)  '  Factory '  means  any  premises  wherein  power 
is  used  in  manufacturing,  making,  altering,  adapt- 
ing, ornamenting,  finishing,  repairing  or  renovating 
any  article  or  articles  for  the  purpose  of  trade  or  gain 
or  of  the  business  carried  on  therein,  including  ex- 
pressly any  brick  j^ard,  meat-packing  house,  foundry, 
smelter,  oil  refinery,  lime  burning  plant,  steam  heat- 
ing plant,  electric  lighting  plant,  electric  p>ower  plant 
and  water  power  plant,  powder  plant,  blast  furnace. 


336     Bradbury's  workmen's  compensation  law 

Kansas 

paper  mill,  printing  plant,  flour  mill,  glass  factory, 
cement  plant,  artificial  gas  plant,  machine  or  repair 
shop,  salt  plant,  and  chemical  manufacturing  plant. 

"(c)  'Mine'  means  any  opening  in  the  earth  for 
the  purpose  of  extracting  any  minerals,  and  all  under- 
ground workings,  slopes,  shafts,  galleries  and  tun- 
nels, and  other  ways,  cuts  and  openings  connected 
therewith,  including  those  in  the  course  of  being 
opened,  sunk  or  driven;  and  includes  all  the  appurte- 
nant structures  at  or  about  the  openings  of  the  mine, 
and  any  adjoining  adjacent  work  place  where  the 
material  from  a  mine  is  prepared  for  use  or  ship- 
ment. 

"  (rf)  '  Quarry '  means  any  place,  not  a  mine,  where 
stone,  slate,  clay,  sand,  gravel  or  other  solid  material 
is  dug  or  otherwise  extracted  from  the  earth  for  the 
purpose  of  trade  or  bargain  or  of  the  employer's 
trade  or  business. 

"(e)  'Electrical  work'  means  any  kind  of  work 
in  or  directly  connected  with  the  construction,  in- 
stallation, operation,  alteration,  removal  or  repair 
of  wires,  cables,  switchboards  or  apparatus,  used 
for  the  transmission  of  electrical  current. 

"(/)  'Building  work'  means  any  work  in  the 
erection,  construction,  extension,  decoration,  al- 
teration, repair  or  demolition  of  any  building  or 
structural    appurtenance. 

"(g)  'Engineering  work'  means  any  work  in  the 
construction,  alteration,  extension,  repair  or  demoli- 
tion of  a  railway  (as  hereinbefore  defined)  bridge, 
jetty,  dike,  dam,  reservoir,  underground  conduit, 
sewer,  oil  or  gas  well,  oil  tank,  gas  tank,  water  tower, 
or  water  works  (including  standpipes  or  mains)  any 
caisson  work  or  work  in  artificially  compressed  air, 
any  work  in  dredging,  pile  driving,  moving  build- 


DEFINITIONS   NOT   OTHERWISE    CLASSIFIED         337 

Massachusetts 

ings,  moving  safes,  or  in  laying,  repairing  or  removing, 
underground  pipes  and  connections,  the  erection, 
installing,  repairing,  or  removing  of  boilers,  furnaces, 
engines  and  power  machinery,  (including  belting 
and  other  connections)  and  any  work  in  grading  or 
excavating  where  shoring  is  necessary  or  power 
machinery  or  blasting  powder,  dynamite  or  other 
high  explosives  is  in  use  (excluding  mining  and  quarry- 
ing). 

"(h)  'Employer'  includes  any  person  or  body  of 
persons  corporate  or  unincorporate,  and  the  legal 
representative  of  a  deceased  employer  or  the  re- 
ceiver or  trustee  of  a  person,  corporation,  association 
or  partnership. 

"(i)  'Workman'  means  any  person  who  has  en- 
tered into  the  employment  of  or  works  under  contract 
of  service  or  apprenticeship  with  an  employer,  but 
does  not  include  a  person  who  is  employed  otherwise 
than  for  the  purpose  of  the  employer's  trade  or 
business.  Any  reference  to  a  workman  who  has  been 
injured  shall,  where  the  workman  is  dead,  include  a 
reference  to  his  dependents,  as  hereinafter  defined, 
or  to  his  legal  representative,  or  where  he  is  a  minor 
or  incompetent,  to  his  guardian." 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  V,  §2.  The  following  words  and  phrases, 
as  used  in  this  Act,  shall,  unless  a  different  meaning 
is  plainly  required  by  the  context,  have  the  following 
meaning: — 

"'Employer'  shall  include  the  legal  representative 
of  a  deceased  employer. 

"'Employ^'  shall  include  every  person  in  the  serv- 
22 


338     Bradbury's  workmen's  compensation  law 

Massachusetts 

ice  of  another  under  any  contract  of  hire,  express 
or  implied,  oral  or  written,  except  one  whose  employ- 
ment is  but  casual,  or  is  not  in  the  usual  course  of  the 
trade,  business,  profession  or  occupation  of  his  em- 
ployer. Any  reference  to  an  employ6  who  has  been 
injured  shall,  when  the  employ^  is  dead,  also  include 
his  legal  representatives,  dependents  and  other  per- 
sons to  whom  compensation  may  be  payable. 

"'Dependents'  shall  mean  members  of  the  em- 
ploye's family  or  next  of  kin  who  were  wholly  or 
partly  dependent  upon  the  earnings  of  the  employ^ 
for  support  at  the  time  of  the  injury. 

"'Average  weekly  wages'  shall  mean  the  earnings 
of  the  injured  employe  during  the  period  of  twelve 
calendar  months  immediately  preceding  the  date  of 
injury,  divided  by  fifty-two;  but  if  the  injured  em- 
ploy6  lost  more  than  two  weeks'  time  during  such 
period  then  the  earnings  for  the  remainder  of  such 
twelve  calendar  months  shall  be  divided  by  the  num- 
ber of  weeks  remaining  after  the  time  so  lost  has  been 
deducted.  Where,  by  reason  of  the  shortness  of  the 
time  during  which  the  employ^  has  been  in  the  em- 
ployment of  his  employer,  or  the  nature  or  terms  of 
the  employment,  it  is  impracticable  to  compute  the 
average  weekly  wages,  as  above  defined,  regard  may 
be  had  to  the  average  weekly  amount  which,  during 
the  twelve  months  previous  to  the  injury,  was  being 
earned  by  a  person  in  the  same  grade  employed  at 
the  same  work  by  the  same  employer;  or,  if  there  is 
no  person  so  employed,  by  a  person  in  the  same  grade 
employed  in  the  same  class  of  employment  and  in  the 
same  district. 

"'Association'  shall  mean  the  Massachusetts  Em- 
ployes Insurance  Association. 

"'Subscriber'  shall  mean  an  employer  who  has 


DEFINITIONS   NOT   OTHERWISE    CLASSIFIED         339 
New  Jersey 

become  a  member  of  the  association  by  paying  a 
year's  premium  in  advance  and  receiving  the  receipt 
of  the  association  therefor,  provided  that  the  associa- 
tion holds  a  Ucense  issued  by  the  insurance  com- 
missioner as  provided  in  Part  IV,  section  twelve." 

MICHIGAN 
(L.  1912,  No.  3) 
See  Chapters  II  and  XVI. 

NEVADA 

(L.  1911,  c.  183) 

As  to  "Employer,"  ''Workmen"  and  Dependents, 
see  §  2,  in  Chapter  II,  ante,  page  151. 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

"Dependents,"  "Widow,  children  and  parents  resi- 
dent of  this  State."  See  §  6,  in  Chapter  VIII,  antCy 
page  221. 

There  are  no  other  definitions  in  the  New  Hampshire 

Act. 

NEW  JERSEY 

(L.  1911,  c.  95) 

"SECTION  III 

"General  Provisions 

"23.  What  constitutes  willful  negligence.  For  the 
purposes  of  this  Act,  willful  negligence  shall  consist 
of  (1)  deliberate  act  or  deliberate  failure  to  act,  or 
(2)  such  conduct  as  evidences  reckless  indifference 


340    Bradbury's  workmen's  compensation  law 

Rhode  Island 

to  safety,  or  (3)  intoxication,  operating  as  the  proxi- 
mate cause  of  injury. 

"Use  of  certain  words.  Wherever  in  this  act  the 
singular  is  used  the  plural  shall  be  included;  where  the 
masculine  gender  is  used,  the  feminine  and  neuter 
shall  be  included. 

"Synonyms.  Employer  is  declared  to  be  synony- 
mous with  master  and  includes  natural  persons,  part- 
nerships and  corporations;  employ^  is  synonymous 
with  servant  and  includes  all  natural  persons  who 
perform  service  for  another  for  financial  consideration, 
exclusive  of  casual  employments. 

"As  to  amputations.  Amputation  between  the 
elbow  and  the  wrist  shall  be  considered  as  the  equiva- 
lent of  the  loss  of  a  hand,  and  amputation  between 
the  knee  and  the  ankle  shall  be  considered  as  the 
equivalent  of  the  loss  of  a  foot." 


OHIO 

(L.  1911.  c.  000) 
The  Ohio  Act  contains  no  definitions. 

RHODE  ISLAND 
(L.  1912,  c.  000) 
"ARTICLE  V 
''Miscellaneous  Provisions 

"§  1.  In  this  act,  unless  the  context  otherwise 
requires : 

"(a)  'Employer'  includes  any  person,  co-partner- 
ship, corporation  or  voluntary  association,  and  the 
legal  representative  of  a  deceased  employer. 

"(b)  'Employ 6'  means  any  person  who  has  en- 


DEFINITIONS   NOT   OTHERWISE    CLASSIFIED         341 
Wisconsin 

tered  into  the  employment  of,  or  works  under  con- 
tract of  service  or  apprenticeship  with,  an  employer, 
and  whose  remuneration  does  not  exceed  eighteen 
hundred  dollars  a  year.  It  does  not  include  a  person 
whose  employment  is  of  a  casual  nature,  and  who  is 
employed  otherwise  than  for  the  purpose  of  the  em- 
ployer's trade  or  business.  Any  reference  to  an  em- 
ploy6  who  has  been  injured  shall,  where  the  employ^ 
is  dead,  include  a  reference  to  his  dependents  as  here- 
inbefore defined,  or  to  his  legal  representative,  or, 
where  he  is  a  minor,  or  incompetent,  to  his  conservator 
or  guardian," 


WASHINGTON 
(L.  1911,  c.  74) 


See  §§  2  and  3,  in  Chapter  II,  ante,  page  164.  See 
§  5  in  Chapter  IX,  ante,  page  269.  See  §  5  {%)  in  Chap- 
ter "VVT    nnfp    nao-fi  51'^  1 


jf  «j  111  v^iiapLci    x-^v,  U/ivLC', 

ter  XVI,  ante,  page  331 


WISCONSIN 

(L.  1911,  c.  50) 

For  definition  of  ''employes"  who  come  within  the 
provisions  of  the  statute  see  Chapter  II,  ante,  page  170. 


CHAPTER  XVIII 

GARNISHMENT  OR  SEIZURE  OF  AWARDS  FOR  DEBT, 
AND  ASSIGNMENT  OF  AWARDS 

Page  Page 

California 342     New  Hampshire 343 

Illinois 342     New  Jersey 344 

Kansas 343     Ohio 344 

Massachusetts 343  -  Rhode  Island 344 

Michigan , . . .  343     Washington 344 

Nevada 343     Wisconsin 345 

CALIFORNIA 

(L.  1911,  c.  399) 

"§22.  No  claim  for  compensation  under  this  Act 
shall  be  assignable  before  payment,  but  this  provision 
shall  not  affect  the  survival  thereof ;  nor  shall  any  claim 
for  compensation,  or  compensation  awarded,  adjudged 
or  paid,  be  subject  to  be  taken  for  the  debts  of  the 
party  entitled  thereto." 

ILLINOIS 

(L.  1911,  c.  000) 

"§11.  *  *  *  the  pa3maents  due  under  such  com- 
pensation provisions  shall  not  be  subject  to  attach- 
ment, levy,  execution,  garnishment  or  satisfaction 
of  debts,  except  to  the  same  extent  and  in  the  same 
manner  as  wages  or  earnings  for  personal  service  are 
now  subject  to  attachment,  levy,  execution,  garnish- 
ment or  satisfaction  of  debts  under  the  laws  of  this 
State,  and  shall  not  be  assignable  *  *  *  " 
342 


GARNISHMENT   AND    ASSIGNMENT   OF    AWARDS      343 

New  Hampshire 

KANSAS 

(L.  1911,  c.  218) 

"§  15.  The  payments  due  under  this  act,  as  well  as 
any  judgment  obtained  thereunder,  shall  not  be  as- 
signable or  subject  to  levy,  execution  or  attachment, 
except  for  medicine,  medical  attention  and  nursing." 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  21.  No  payment  under  this  act  shall  be 
assignable  or  subject  to  attachment,  or  be  liable  in 
any  way  for  any  debts." 

MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §  21.  No  payment  under  this  act  shall  be 
assignable  or  subject  to  attachment  or  garnishment, 
or  be  held  liable  in  any  way  for  any  debts." 

NEVADA 

(L.  1911,  c.  183) 

There  is  no  provision  on  this  subject  in  the  Nevada 
Act. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"  §  10.  *  *  *  Weekly  payments  due  imder  this 
act  shall  not  be  assignable  or  subject  to  levy,  execu- 
tion, attachment  or  satisfaction  of  debts.  Any  right  to 
receive  compensation  under  this  act  shall  be  extin- 
guished by  the  death  of  the  person  entitled  thereto." 


344     Bradbury's  workmen's  compensation  law 

New  Jersey 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§  II,  paragraph  22  in  Part  22.  *  *  *  Claims  not 
assignable.  Claims  or  payments  due  under  this  act 
shall  not  be  assignable,  and  shall  be  exempt  from  all 
claims  of  creditors  and  from  levy,  execution  or  at- 
tachment." 

OHIO 

(L.  1911,  c.  000) 

"§35.  Benefits — creditors.  Benefits  before  payment 
shall  be  exempt  from  all  claims  or  creditors  and 
from  any  attachment  or  execution,  and  shall  be  paid 
only  to  such  employes  or  their  dependents." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  23.  Claims  not  assignable.  No  claims 
for  compensation  under  this  act,  or  under  any  al- 
ternative scheme  permitted  by  Article  IV  of  this  act, 
shall  be  assignable,  or  subject  to  attachment,  or  liable 
in  any  way  for  any  debts." 

Article  IV  provides  for  an  alternative  scheme.    See 
Chapter  XXVII. 

WASHINGTON 

(L.  1911,  c.  74) 

"§  10.  Exemption  of  Awards.  No  money  paid  or 
payable  under  this  act  out  of  the  accident  fund  shall, 
prior  to  issuance  and  delivery  of  the  warrant  therefor, 
be  capable  of  being  assigned,  charged,  nor  ever  be 


GARNISHMENT   AND    ASSIGNMENT   OF    AWARDS      345 

Wisconsin 

taken  in  execution  or  attached  or  garnished,  nor  shall 
the  same  pass  to  any  other  person  by  operation  of  law. 
Any  such  assignment  or  charge  shall  be  void." 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-23.  No  claim  for  compensation  under 
this  act  shall  be  assignable  before  payment,  but  this 
provision  shall  not  affect  the  survival  thereof;  nor 
shall  any  claim  for  compensation,  or  compensation 
awarded,  adjudged,  or  paid,  be  subject  to  be  taken 
for  the  debts  of  the  party  entitled  theretq.," 


CHAPTER  XIX 

ATTORNEY'S  FEES  ^ 


Page 

California 346     New  Hampshire 347 

Illinois 346     New  Jersey 348 

Kansas 346     Ohio 348 

Massachusetts 347     Rhode  Island 348 

Michigan 347     Washington 349 

Nevada 347     Wisconsin 349 

CALIFORNIA 

(L.  1911,  c.  399) 

The  California  Act  is  silent  on  the  question  of  at- 
torney's fees. 

ILLINOIS 

(L.  1911,  c.  000) 

"§  11.  *  *  *  No  claim  of  any  attorney-at-law 
for  services  in  securing  a  recovery  under  this  Act  shall 
be  an  enforceable  lien  thereon  unless  the  amount  of 
the  same  be  approved  in  writing  by  a  judge  of  a  court 
of  record  which  approval  may  be  made  in  term,  time 
or  vacation.  *  *  *  *  " 

KANSAS 

(L.  1911,  c.  218) 

j  "§15.  *  *  *  no  claim  of  any  attorney-at-law  for 

services  rendered  in  securing  such  indemnity  or  com- 
pensation or  judgment  shall  be  an  enforceable  lien 
thereon,  unless  the  same  has  been  approved  in  writing 

*  For  fees  and  costs  see  Chapter  XXXI,  post,  page  550, 
346 


attorney's  fees  347 


New  Hampshire 


by  the  judge  of  the  court  where  said  case  was  tried; 
but  if  no  trial  was  had  then  by  any  judge  of  the  dis- 
trict court  of  this  state  to  whom  such  matter  has  been 
regularly  submitted,  on  due  notice  to  the  party  or 
parties  in  interest  of  such  submission." 

"§38.  Attorney's  liens.  Contingent  fees  of  at- 
torneys for  services  and  proceedings  under  this  act 
shall  in  every  case  be  subject  to  approval  by  the 
court." 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  III,  §  13.  Fee  of  attorneys  and  physicians  for 
services  under  this  act  shall  be  subject  to  the  approval 
of  the  industrial  accident  board." 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  III,  §  10.  *  *  *  The  fees  and  the  payment 
thereof  of  all  attorneys  and  physicians  for  services 
under  this  act  shall  be  subject  to  the  approval  of  the 
Industrial  Accident  Board." 

NEVADA 

(L.  1911,  c.  183) 

"§9.  *  *  *  The  prevailing  party  in  any  action, 
brought  under  the  provisions  of  this  Act,  shall  be  en- 
titled to  his  costs  of  suit  and  reasonable  attorney's 
fees." 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

"§  11.  No  claim  of  any  attorney-at-law  for  any  con- 
tingent interest  in  any  recovery  under  this  act  for 
services  in  securing  such  recovery  or  for  disbursements 


348    Bradbury's  workmen's  compensation  law 

Rhode  Island 

shall  be  an  enforceable  lien  on  such  recovery,  unless 
the  account  of  the  same  be  approved  in  writing  by  a 
justice  of  the  Superior  Court,  or,  in  case  the  same  be 
tried  in  any  court,  by  the  justice  presiding  at  such 
trial." 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§I-6.  Claim  against  compensation.  Proviso.  No 
claim  for  legal  services  or  disbursements  pertaining 
to  any  demand  made  or  suit  brought  under  the  pro- 
visions of  this  act  shall  be  an  enforceable  lien  against 
the  amount  paid  as  compensation,  unless  the  same  be 
approved  in  writing  by  the  judge  or  justice  presiding 
at  the  trial,  or  in  case  of  settlement  without  trial,  by 
the  judge  of  the  circuit  court  of  the  district  in  which 
such  issue  arose;  provided,  that  if  notice  in  writing  be 
given  the  defendant  of  such  claim  for  legal  services  or 
disbursements,  the  same  shall  be  a  lien  against  the 
amount  paid  as  compensation,  subject  to  determina- 
tion of  the  amount  and  approval  hereinbefore  pro- 
vided." 

OHIO 

(L.  1911,  c.  000) 

On  appeals  to  the  court  from  awards  by  the  board 
"  the  costs  of  such  proceeding,  including  a  reasonable 
attorney's  fee  to  the  claimant's  attorney  to  be  fixed 
by  the  trial  judge,  shall  be  taxed  against  the  unsuc- 
cessful party."    §  36. 

RHODE  ISLAND 

(L.  1911,  c.  000) 

"Art.  II,  §  3.  Contingent  fees.  Contingent  fees  of 
attorneys  for  services  under  this  act  shall  be  subject 
to  the  approval  of  the  superior  court." 


attorney's  fees  349 


Wisconsin 


WASHINGTON 

(L.  1911,  c.  74) 

In  cases  of  appeal  for  a  court  review  of  an  award,  "It 
shall  be  unlawful  for  any  attorney  engaged  in  any  such 
appeal  to  charge  or  receive  any  fee  therein  in  excess  of 
a  reasonable  fee,  to  be  fixed  by  the  court  in  the  case." 
§  20.    See  Chapter  XXV,  post,  page  464. 

WISCONSIN 

(L.  1911,  c.  50) 

"§  2394-22.  *  *  *  unless  previously  authorized  by 
the  board,  no  lien  shall  be  allowed,  nor  any  contract 
be  enforceable,  for  any  contingent  attorney's  fee  for 
the  enforcement  or  collection  of  any  claim  for  com- 
pensation where  such  contingent  fee,  inclusive  of  all 
taxable  attorney's  fees  paid  or  agreed  to  be  paid  for 
the  enforcement  or  collection  of  such  claim,  exceeds 
ten  per  cent  of  the  amount  at  which  such  claim  shall 
be  compromised,  or  of  the  amount  awarded,  adjudged, 
or  collected." 


CHAPTER  XX 

SUBROGATION  BY  AND  AGAINST  EMPLOYERS,  INSUR- 
ANCE COMPANIES  AND  OTHERS 

Page  Page 

California 352     New  Hampshire 355 

Illinois 352     New  Jersey 356 

Kansas 353     Ohio 356 

Massachusetts 354     Rhode  Island 356 

Michigan 354     Washington 357 

Nevada 355     Wisconsin 357 

There  is  such  an  entire  lack  of  harmony  in  the  va- 
rious acts  on  the  subject  of  this  chapter  that  no  general 
rules  can  be  laid  down.  A  tendency  is  shown,  however, 
to  give  to  the  employer  the  right  of  subrogation  against 
a  third  person  actually  causing  the  injury  to  the  em- 
ployer's workman  for  which  injury  the  employer  has 
been  called  upon  to  pay  compensation.  A  few  of  the 
British  cases  found  to  be  applicable  have  been  appended 
below. 

Where  a  workman  employed  by  a  subcontractor 
claims  and  secures  compensation  from  the  principal 
contractor  such  principal  contractor  can  recover  in- 
demnity from  the  subcontractor,  and  in  such  an  action 
an  insurance  company  which  has  insured  the  sub- 
contractor can  be  brought  in  as  a  party  defendant. 
Evans  v.  Cook,  Lancashire  &  Yorkshire  Accident  Ins. 
Co.,  Third  Parties  (1904),  7  W.  C.  C.  41. 

Where  a  workman  is  injured  by  reason  of  a  breach 
by  two  fellow  workmen  of  certain  regulations  made  by 

350 


SUBROGATION  351 


Subrogation 


the  Secretary  of  State,  under  the  Factory  and  Work- 
shop Act,  such  fellow  workmen  are  liable  to  indemnify 
the  employers  under  the  Workmen's  Compensation 
Act  for  the  amount  which  the  employers  are  compelled 
to  pay  to  the  injured  workman,  as  such  fellow  workmen 
are  persons  other  than  the  employer  within  the  mean- 
ing of  the  Compensation  Act.  Lees  and  Sykes  v.  Dun- 
kerley  Brothers  (1910),  103  L.  T.  467;  4  B.  W.  C.  C.  115. 

The  owners  of  ships  employed  the  defendants  to 
draw  coal  from  nearby  railway  tracks  to  a  tip  on  a 
dock  and  load  it  on  to  the  ships.  One  of  the  drivers 
employed  by  the  defendants  tripped  on  the  track  and 
was  injured  by  the  car  his  team  was  hauling.  He 
claimed  and  secured  an  award  of  compensation  against 
the  plaintiff,  the  shipowner.  The  latter  sued  the  de- 
fendant, the  employer  of  the  workman,  for  indemnity, 
and  judgment  was  awarded  in  favor  of  the  ship- 
owners. Pacific  Navigation  Co.  v.  Pttgh  &  Son  (1907), 
23T.  L.  R.  622;9W.  C.  C.  39. 

The  driver  of  a  motor  car,  when  nearing  a  cart  and 
horse,  knowing  that  his  hooter  was  out  of  order,  slowed 
down  to  six  miles  an  hour.  When  abreast  of  the  cart 
the  horse  became  frightened  and  bolted.  The  driver 
was  thrown  and  fatally  injured.  The  dependent 
claimed  compensation  from  the  master,  who  brought 
in  the  driver  of  the  motor  car  as  a  third  party.  The 
County  Court  judge  held  that  the  damage  to  the 
hooter  was  not  the  cause  of  the  accident,  and  that  it 
was  not  negligence  on  the  part  of  the  driver  of  the  car 
to  continue  running  on  the  road  with  the  hooter  silent. 
The  widow  of  the  deceased  could  not  therefore  have 
maintained  an  action  against  the  owners  of  the  motor 
car  for  the  loss  of  her  husband,  and  he  accordingly 


352     Bradbury's  workmen's  compensation  law 

Illinois 

dismissed  the  master's  claim  for  indemnity.  On  appeal 
it  was  held  that  there  was  evidence  to  support  the 
County  Court  judge's  findings  of  fact  and  that  the 
mere  breach  of  regulations  made  under  the  Motor  Act 
was  not  necessarily  evidence  of  negligence.  Lankester 
V.  Miller-Hetherington  (1910),  4  B.  W.  C.  C.  80. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§26.  The  making  of  a  lawful  claim  against  an 
employer  for  compensation  under  this  act  for  the 
injury  or  death  of  his  employ 6  shall  operate  as  an  as- 
signment of  any  assignable  cause  of  action  in  tort 
which  the  employ^  or  his  personal  representative  may 
have  against  any  other  party  for  such  injury  or  death, 
and  such  employer  may  enforce  in  his  own  name  the 
liability  of  such  other  party." 

ILLINOIS 

(L.  1911,  c.  000) 

*'§  16.  Any  person  who  shall  become  entitled  to 
compensation  under  the  provisions  of  this  Act,  shall, 
in  the  event  of  his  inability  to  recover  such  compensa- 
tion from  the  employer  on  account  of  his  insolvency, 
be  subrogated  to  all  the  rights  of  such  employer  against 
any  insurance  company  or  association  which  may  have 
insured  such  employer,  against  loss  growing  out  of 
the  compensation  required  by  the  provisions  of  this 
Act  to  be  paid  by  such  employer,  and  in  such  case  only, 
a  payment  of  the  compensation  that  has  accrued  to 
the  person  entitled  thereto  in  accordance  with  the 
provisions  of  this  Act,  shall  relieve  such  insurance 
company  from  such  liability." 


SUBROGATION  353' 


Kansas 


"§  17.  Where  the  injury  for  which  compensation  is 
payable  under  this  Act  was  caused  under  circum- 
stances creating  a  legal  liability  in  some  person,  other 
than  the  employer,  to  pay  damages  in  respect  thereof: 

"  (a)  The  employ^  or  beneficiary  may  take  proceed- 
ings both  against  that  person  to  recover  damages  and 
against  the  employer  for  compensation,  but  the 
amount  of  the  compensation  which  he  is  entitled  to 
under  this  Act  shall  be  reduced  by  the  amount  of  dam- 
ages recovered. 

"  (6)  If  the  employe  or  beneficiary  has  recovered 
compensation  under  this  Act,  the  employer  by  whom 
the  compensation  was  paid  or  the  person  who  has  been 
called  upon  to  pay  the  indemnity  under  Sections  4 
and  5  of  this  Act,  may  be  entitled  to  indemnity  from 
the  person  so  liable  to  pay  damages  as  aforesaid,  and 
shall  be  subrogated  to  the  rights  of  the  employ^  to 
recover  damages  therefor." 

KANSAS 

(L.  1911,  c.  218) 

"The  principal  contractor  who  pays  compensation 
voluntarily  to  a  workman  of  a  subcontractor  shall 
have  the  right  to  recover  over  against  the  subcon- 
tractor." §  4,  (/).  See  remainder  of  this  section  in 
Chapter  III,  ante,  page  183. 

See  also  §  34  as  to  employes'  right  to  subrogation 
against  an  insurance  company,  in  Chapter  XXXIII, 
post,  page  562. 

"§5.  Remedies  both  against  employer  and  stranger. 
Where  the  injury  for  which  compensation  is  payable 
under  this  act  was  caused  under  circumstances  creat- 
ing a  legal  liability  against  some  person  other  than  the 
employer  to  pay  damages  in  respect  thereof,  (a)  The 
23 


354     Bradbury's  workmen's  compensation  law 

Michigan 

workman  may  take  proceedings  against  that  person 
to  recover  damages  and  against  any  person  liable  to 
pay  compensation  under  this  act  for  such  compensa- 
tion, but  shall  not  be  entitled  to  recover  both  damages 
and  compensation;  and  (6)  If  the  workman  has  re- 
covered compensation  under  this  act,  the  person  by 
whom  the  compensation  was  paid,  or  any  person  who 
has  been  called  on  to  indemnify  him  under  the  sec- 
tion of  this  act  relating  to  subcontracting,  shall  be 
entitled  to  indemnity  from  the  person  so  liable  to  pay 
damages  as  aforesaid,  and  shall  be  subrogated  to  the 
rights  of  the  workman  to  recover  damages  therefor." 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  III,  §  15.  Where  the  injury  for  which  com- 
pensation is  payable  under  this  act  was  caused  under 
circumstances  creating  a  legal  Hability  in  some  person 
other  than  the  subscriber  to  pay  damages  in  respect 
thereof,  the  employ^  may  at  his  option  proceed  either 
at  law  against  that  person  to  recover  damages,  or 
against  the  association  for  compensation  under  this 
act,  but  not  against  both;  and  if  compensation  be 
paid  under  this  act,  the  association  may  enforce  in 
the  name  of  the  employ^,  or  in  its  own  name  and  for 
its  own  benefit,  the  liability  of  such  other  person." 

For  rights  and  liabilities  of  principal  and  subcon- 
tractors see  Part  III,  §  17,  reprinted  in  Chapter  III, 
ante,  page  183. 

MICHIGAN 

(L.  1911,  c.  000) 

"Part  III,  §  15.  Where  the  injury  for  which  com- 
pensation is  payable  under  this  act  was  caused  under 


SUBROGATION  355 


New  Hampshire 


circumstances  creating  a  legal  liability  in  some  person 
other  than  the  employer  to  pay  damages  in  respect 
thereof,  the  employ^  may  at  his  option  proceed  either 
at  law  against  that  person  to  recover  damages,  or 
against  the  employer  for  compensation  under  this  act, 
but  not  against  both,  and  if  compensation  be  paid 
under  this  act  the  employer  may  enforce  for  his  bene- 
fit or  for  that  of  the  insurance  company  carrying  such 
risk,  or  the  commissioner  of  insurance,  as  the  case 
may  be,  the  liability  of  such  other  person." 

NEVADA 

(L.  1911,  c.  183) 

"§  13.  The  making  of  a  lawful  claim  against  an 
employer  for  compensation  under  this  act  for  the  in- 
jury or  death  of  his  employ^  shall  operate  as  an  assign- 
ment of  any  assignable  cause  of  action  in  tort  which 
the  employ^  or  his  personal  representative  may  have 
against  any  other  party  for  such  injury  or  death,  and 
such  employer  may  enforce  in  his  own  name  the  lia- 
bility of  such  other  party." 

See  also  §  10,  in  Chapter  III,  ante,  page  184. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

Any  employer  to  take  advantage  of  the  provisions 
of  the  Act  must  either  satisfy  the  Commissioner  of 
Labor  that  he  is  of  sufficient  financial  ability  to  comply 
with  the  Act,  or  must  file  a  bond  "in  such  form  and 
amount  as  the  Commissioner  may  prescribe."  This 
bond  may  be  enforced  by  the  Commissioner  of  Labor 
"for  the  benefit  of  all  persons  to  whom  such  employer 
may  become  liable  under  this  Act  in  the  same  manner 


356     Bradbury's  workmen's  compensation  law 

Rhode  Island 

as  probate  bonds  are  enforced."    §  3.    See  Chapter  II, 
ante,  page  155. 


NEW  JERSEY 
(L.  1911,  c.  95) 

There  is  no  subrogation  provision  in  the  New  Jersey 
Act. 

OHIO 

(L.  1911,  c.  000) 

The  Ohio  Act  contains  no  provision  on  the  subject 
of  this  chapter. 

RHODE  ISLAND 

(L.  1911,  c.  000) 

"Art.  Ill,  §  21.  Liability  of  other  than  employer. 
Where  the  injury  for  which  compensation  is  payable 
under  this  act  was  caused  under  circumstances  creat- 
ing a  legal  liability  in  some  person  other  than  the 
employer  to  pay  damages  in  respect  thereof,  the  em- 
ploye may  take  proceedings  both  against  that  person 
to  recover  damages  and  against  any  person  liable  to 
pay  compensation  under  this  act  for  such  compensa- 
tion, but  shall  not  be  entitled  to  receive  both  damages 
and  compensation;  and  if  the  employe  has  been  paid, 
compensation  under  this  act,  the  person  by  whom  the 
compensation  was  paid  shall  be  entitled  to  indemnity 
from  the  person  so  liable  to  pay  damages  as  aforesaid, 
and,  to  the  extent  of  such  indemnity,  shall  be  sub- 
rogated to  the  rights  of  the  employ^  to  recover  dam- 
ages therefor." 


SUBROGATION  357 


Wisconsin 


WASHINGTON 

(L.  1911,  c.  74) 

The  Washington  Act  contains  no  provision  on  this 
subject. 

WISCONSIN 

(L.  1911,  c.  50) 

"§  2394-25.  The  making  of  a  lawful  claim  against 
an  employer  for  compensation  under  this  act  for  the 
injury  or  death  of  his  employ^  shall  operate  as  an  as- 
signment of  any  cause  of  action  in  tort  which  the 
employ^  or  his  personal  representative  may  have 
against  any  other  party  for  such  injury  or  death;  and 
such  employer  may  enforce  in  his  own  name  the  lia- 
biUty  of  such  other  party." 


CHAPTER  XXI 

NOTICE  OF  CLAIM  UNDER   ACT;  WHEN   REQUIRED; 
HOW  SERVED;  FORM  OF  NOTICE 

Page 

1.  Introduction 358 

2.  Notice  by  one  dependent  does  not  enure  to  benefit  of  another  359 

3.  Sufficiency  of  claim  for  compensation 359 

4.  Failure  to  give  notice;  lack  of  prejudice;  burden  of  proof. . .  360 

5.  Prejudice  by  failure  of  notice;  omission  of  notice  to  in- 

surance company  by  employer 362 

6.  Sufficient  excuse  for  failure  to  give  notice 362 

7.  Ignorance  of  law  not  a  "mistake"  excusing  giving  of  notice  362 

8.  Disability  not  caused  until  some  time  after  accident 363 

9.  Waiver  of  notice  by  paying  compensation 363 

Page  Page 

California 363  New  Hampshire 370 

Illinois 364  New  Jersey 371 

Kansas 365  Ohio 372 

Massachusetts 366  Rhode  Island 372 

Michigan 368  Washington 374 

Nevada 369  Wisconsin 375 

1.  Introduction. 

All  the  state  laws  contain  provisions  requiring  notice 
to  be  given  by  the  employ^,  or  his  dependents,  of  an 
accident  and  a  claim  for  compensation.  Speaking 
generally  these  provisions  are  very  liberal  in  excusing 
technical  defects  in  such  notices.  Nevertheless  there 
must  be  a  substantial  compliance  with  the  provisions 
of  the  statutes  or  the  right  to  compensation  may  be 
forever  lost. 

358 


NOTICE   OF   CLAIM  359 


Sufficiency  of  claim  for  compensation 


2.  Notice  by  one  dependent  does  not  enure  to  bene- 

fit of  another. 
The  father  of  a  workman  killed  by  accident  com- 
menced an  action  for  damages  against  his  son's  em- 
ployer, and  on  the  failure  of  this  action  asked  for  com- 
pensation to  be  assessed  in  accordance  with  the  Act. 
The  mother  and  sisters  thereupon  also  claimed  com- 
pensation in  the  proceedings  by  the  father,  as  de- 
pendents. They  had  made  no  claim  previously  and 
much  more  than  six  months  had  passed  since  the  death. 
It  was  held  that  the  right  given  under  §  1  (4)  of  the 
Act  was  a  personal  privilege  to  the  one  who  brought  the 
action,  and  that  the  six  months  for  claim  having  ex- 
pired, the  mother  and  sisters  were  not  entitled  to  com- 
pensation. Kyle  V.  M'Gintys  (1911),  48  Scotch  L.  R. 
474;4B.  W.  C.  C.  389. 

3.  Sufficiency  of  claim  for  compensation. 

The  wife  of  an  injured  workman  received  from  the 
employer  her  husband's  full  wages  for  several  weeks 
after  the  accident.  The  employer  then  refused  to  pay 
the  wages  any  longer  and  the  wife  asked  him  if,  as  he 
refused  to  compensate  her  husband,  whether  he  would 
compensate  her  and  her  children.  It  was  held  that 
there  was  no  evidence  upon  which  the  County  Court 
judge  could  find  that  a  claim  for  compensation  had 
been  made  as  required  by  §  2  (1)  of  the  Act.  Johnson 
V.  Wootton  (1911),  4  B.  W.  C.  C.  258.  A  workman  was 
injured  on  July  12th.  He  saw  his  employer  the  same 
evening  but  did  not  mention  the  accident.  He  alleged 
that  on  the  following  day  he  sent  notice  by  messenger. 
On  July  23d  he  again  saw  his  employer,  but  said 
nothing   about   compensation.     He   alleged   that   on 


360     Bradbury's  workmen's  compensation  law 

Failure  of  notice 

August  6th  he  again  sent  notice  by  registered  post. 
On  August  12th  a  solicitor  sent  formal  notice  on  his 
behalf.  The  employer  denied  having  received  any  but 
the  last  notice.  The  County  Court  judge  found  that 
the  notice  of  the  accident  had  not  been  given  as  soon 
as  practicable  after  the  happening  thereof,  and  that 
it  had  not  been  established  that  the  employer  had  not 
been  prejudiced  by  the  delay.  It  was  held  on  appeal 
that  there  was  evidence  to  support  the  finding.  Leach 
v.  Hickson  (1911),  4  B.  W.  C.  C.  153.  An  injured 
workman  was  waited  upon  by  an  agent  of  an  insurance 
company,  with  whom  his  employers  were  insured,  who 
endeavored  to  get  him  to  accept  compensation,  and 
by  a  tout  to  a  lawyer,  who  advised  him  not  to  accept 
compensation,  but  to  claim  damages.  The  workman 
eventually  decided  not  to  accept  compensation,  and 
put  the  matter  into  the  lawyer's  hands,  who,  however, 
carried  nothing  to  a  conclusion,,  with  the  result  that 
the  six  months  allowed  by  the  Act  for  making  a  claim 
expired.  In  an  arbitration  at  the  instance  of  the  work- 
man the  arbitrator  found  that  the  workman  was  barred 
from  prosecuting  the  claim,  and  dismissed  the  applica- 
tion. It  was  held  by  the  Court  of  Sessions  of  Scotland 
that  as  no  claim  had  been  made  within  the  six  months, 
the  application  had  been  rightly  dismissed.  Devons  v. 
Alexander  Anderson  and  Sons  (1910),  48  Scotch  L.  R. 
187;  4  B.  W.  C.  C.  354.  A  mere  notice  of  injury  is  not 
a  claim  for  compensation  or  a  proceeding  to  recover 
compensation.    Perry  v.  Clements  (1901),  3  W.  C.  C.  56. 

4.  Failure  to  give  notice;  lack  of  prejudice;  burden 
of  proof. 
Where  no  notice  has  been  given  the  onus  lies  on  the 


NOTICE    OF   CLAIM  361 


Failure  of  notice 


applicant  for  compensation  to  show  lack  of  prejudice. 
Hughes  v.  Coed  Talon  Colliery  Co.,  100  L.  T.  555;  2  B. 
W.  C.  C.  159;  Tibbs  v.  Watts,  Blake,  Bearne  &  Co.,  2 

B.  W.  C.  C.  164.  The  burden  is  on  the  workman  of 
proving  that  the  employers  were  not  prejudiced  in  their 
defense  where  notice  of  an  injury  has  not  been  given 
pursuant  to  the  provisions  of  the  Act.  Hancock  v. 
British  Westinghouse  Electric  Co.  (1910),  3  B.  W.  C.  C. 
210.  A  professional  football  player  was  injured  while 
playing,  and  claimed  compensation  under  the  Act. 
The  employers  contended  that  no  claim  for  compensa- 
tion had  been  made  within  six  months  from  the  date  of 
the  injury.  The  County  Court  judge  made  no  finding 
on  that  point.  It  was  held  on  appeal  that  the  onus  was 
upon  the  applicant  to  prove  that  a  claim  was  made 
within  six  months,  or  if  no  claim  was  made,  to  show 
that  he  claims  within  the  proviso  of  §  2  (1)  (6)  of 
the  Act,  excusing  the  workman  where  the  failure  to 
make  a  claim  has  been  occasioned  by  mistake,  absence 
from  the  United  Kingdom  or  other  reasonable  cause. 
Roberts  v.  Crystal  Palace  Football  Club  (1909),  3  B.  W. 

C.  C.  51.  A  workman  claimed  compensation  for  an 
alleged  injury  to  his  ankle.  He  had  said  nothing  at 
the  time  of  the  alleged  injury  and  had  walked  home. 
He  swore  that  he  had  sent  the  notice  the  next  day  to 
the  foreman  carpenter  under  whom  he  worked.  This 
the  foreman  denied.  The  job  was  finished  on  the  day 
of  the  alleged  accident  and  all  the  men  were  paid  off. 
Formal  notice  was  given  two  months  later.  The 
County  Court  judge  held  that  although  the  notice  had 
not  been  given  as  soon  as  practicable,  the  workman 
had  discharged  the  onus  of  showing  that  the  employers 
were  not  prejudiced  by  the  delay.     It  was  held  on 


362     Bradbury's  workmen's  compensation  law 

Ignorance  of  law  not  a  "mistake"  excusing  giving  of  notice 

appeal  that  there  was  no  evidence  to  support  this 
finding.  Burr  ell  v.  Holloway  Brothers  (1911),  4  B.  W. 
C.  C.  239. 

5.  Prejudice  by  failure  of  notice;  omission  of  notice 

to  insurance  company  by  employer. 

An  employer  is  not  prejudiced  by  a  failure  to  receive 
notice  of  an  accident  or  claim  for  compensation  by 
reason  of  the  fact  that  not  receiving  such  notice  he  does 
not  give  notice  to  the  liability  insurance  company  and 
is  thereby  precluded  from  recovery  from  the  insurance 
company  of  the  amount  which  he  is  compelled  to  pay 
the  workman.  Butt  v.  Gellyceidrim  Colliery  Co.  (1909), 
3  B.  W.  C.  C.  44.  An  employer  who  has,  through  delay 
in  giving  notice  of  an  accident,  lost  his  right  to  in- 
demnity against  an  insurance  company  is  thereby  prej- 
udiced in  his  defense.  Barker  v.  Holmes  (1904),  6  W. 
C.  C.  52. 

6.  Sufficient  excuse  for  failure  to  give  notice. 

Failure  to  make  a  claim  within  the  prescribed  period 
is  excused  when  the  applicant  was  absent  abroad  at  the 
time  of  the  deceased  workman's  death,  and  returned  as 
soon  as  possible,  and  after  returning  has  been  wrongly 
advised  as  to  his  legal  rights.  Smith  v.  Pearson  and 
Shipley  (1909),  2  B.  W.  C.  C.  468.  The  foregoing 
decision  was  of  course  made  under  the  particular 
wording  of  the  British  Act. 

7.  Ignorance  of  law  not  a  "  mistake  "  excusing  giving 

of  notice. 
A  claim  for  compensation  was  not  made  within  six 
months,  as  provided  for  in  §  2  (1)  of  the  Act,  owing  to 
the  workman  being  ignorant  of  the  existence  of  the  Act, 


NOTICE    OF   CLAIM  363 


California 


and  it  was  held  that  this  was  not  a  mistake  or  other 
reasonable  cause  within  the  meaning  of  the  Act,  so  as 
to  excuse  the  workman  from  making  a  claim.  Roles  v. 
Pascall  &  Sons  (1911),  104  L.  T.  298;  4  B.  W.  C.  C.  148. 
Where  a  workman  who  was  injured  failed  to  give  notice 
on  the  ground  that  he  was  in  ignorance  of  the  law  re- 
quiring notice  and  asked  to  be  excused  from  such 
default  on  the  ground  of  "mistake,"  it  was  held  that 
ignorance  of  the  law  is  no  mistake  within  the  meaning 
of  the  Compensation  Act,  and  as  there  was  ample  evi- 
dence upon  which  the  judge  could  find  that  the  em- 
ployer was  prejudiced  by  the  failure  to  receive  notice 
the  workman  was  not  entitled  to  compensation.  Bram- 
ley  V.  Evans  &  Sons  (1909),  3  B.  W.  C.  C.  34. 

8.  Disability  not  caused  until  some  time  after  acci- 

dent. 

The  fact  that  an  injury  does  not  cause  disability 
until  some  time  after  the  accident  is  a  reasonable  cause 
for  failure  to  give  notice  thereof  as  the  foundation  of  a 
claim  for  compensation.  Tibbs  v.  Watts,  Blake,  Bearne 
&  Co.,  2  B.  W.  C.  C.  164. 

9.  Waiver  of  notice  by  paying  compensation. 

Written  notice  of  an  accident  is  waived  where  after 
notice  by  parol  the  employer  pays  compensation  for  a 
time.  Davies  v.  Point  of  Ayr  Collieries  (1909),  2  B.  W. 
C.  C.  157. 

CALIFORNIA 

(L.  1911,  c.  399) 

*'§  10.  No  claim  to  recover  compensation  under  this 
act  shall  be  maintained  unless  within  thirty  days  after 


364     Bradbury's  workmen's  compensation  law 

Illinois 

the  occurrence  of  the  accident  which  is  claimed  to  have 
caused  the  injury  or  death,  notice  in  writing,  stating 
the  name  and  the  address  of  the  person  injured,  the 
time  and  the  place  where  the  accident  occurred,  and 
the  nature  of  the  injury,  and  signed  by  the  person 
injured  or  someone  in  his  behalf,  or  in  case  of  his  death, 
by  a  dependent  or  some  one  in  his  behalf  shall  be  served 
upon  the  employer  by  delivering  to  and  leaving  with 
him  a  copy  of  such  notice  or  by  mailing  to  him  by 
registered  mail  a  copy  thereof  in  a  sealed  and  posted 
envelope  addressed  to  him  at  his  last  known  place  of 
business  or  residence.  Such  mailing  shall  constitute 
complete  service.  Provided,  however,  that  any  pay- 
ment of  compensation  under  this  act,  in  whole  or  in 
part,  made  by  the  employer  before  the  expiration  of 
said  thirty  days  shall  be  equivalent  to  the  notice  herein 
required,  and  provided  further,  that  the  failure  to  give 
any  such  notice,  or  any  defect  or  inaccuracy  therein, 
shall  not  be  a  bar  to  recovery  under  this  act  if  it  is 
found  as  a  fact  in  the  proceedings  for  collections  of 
the  claim  that  there  was  no  intention  to  mislead  the 
employer,  and  that  he  was  not  in  fact  misled  thereby, 
and  provided  further  that  if  no  such  notice  is  given 
and  no  payment  of  compensation  made,  within  one 
year  from  the  date  of  the  accident,  the  right  to  com- 
pensation therefor  shall  be  wholly  barred." 

ILLINOIS 

(L.  1911,  c.  000) 

"§  14.  No  proceedings  for  compensation  under  the 
i  Act  shall  be  maintained  unless  notice  of  the  accident 

has  been  given  to  the  employer  as  soon  as  practicable 
after  the  happening  thereof,  and  during  such  disabil- 
ity, and  unless  claim  for  compensation  has  been  made 
within  six  months  after  the  injury,  'except  that  in 


NOTICE    OF   CLAIM  365 


Kansas 


case  of  an  accident  resulting  in  temporary  disability, 
notice  of  such  accident  must  be  given  to  the  employer 
within  thirty  days  after  said  accident,"  or  in  case  of 
the  death  of  the  employ^  or  in  the  event  of  his  incapac- 
ity, within  six  months  after  such  death  or  incapacity, 
or  in  the  event  that  payments  have  been  made  under 
the  provisions  of  this  Act,  within  six  months  after  such 
payments  have  ceased.  No  want  or  defect  or  inac- 
curacy of  such  notice  shall  be  a  bar  to  the  maintenance 
of  proceedings  by  arbitration  or  otherwise  by  the 
employ^,  unless  the  employer  proves  that  he  is  unduly 
prejudiced  in  such  proceedings  by  such  want,  defect  or 
inaccuracy.  Notice  of  the  accident  shall,  in  substance, 
apprise  the  employer  of  the  claim  of  compensation 
made  and  shall  state  the  name  and  address  of  the  em- 
ploye injured,  the  approximate  date  and  place  of  the 
accident,  if  known,  and  in  simple  language  the  cause 
thereof;  which  notice  may  be  served  personally  or  by 
registered  mail,  addressed  to  the  employer  at  his  last 
known  residence  or  place  of  business:  Provided,  that 
the  failure  on  the  part  of  any  person  entitled  to  such 
compensation  to  give  such  notice  shall  not  relieve  the 
employer  from  his  liability  for  such  compensation, 
when  the  facts  and  circumstances  of  such  accident  are 
known  to  such  employer  or  his  agent  supervising  work 
in  which  such  employ^  was  engaged  at  the  time  of  the 
injury. 

KANSAS 

(L.  1911,  c.  218) 

"  §  22.  Notice  and  claim.  Proceedings  for  the  recov- 
ery of  compensation  under  this  act  shall  not  be  main- 
tainable unless  written  notice  of  the  accident,  stating 
the  time,  place,  and  particulars  thereof,  and  the  name 
and  address  of  the  person  injured,  has  been  given 


366     Bradbury's  workmen's  compensation  law 


Massachusetts 


within  ten  days  after  the  accident,  and  unless  a  claim 
for  compensation  has  been  made  within  six  months 
after  the  accident,  or  in  case  of  death,  within  six 
months  from  the  date  thereof.  Such  notice  shall  be 
delivered  by  registered  mail,  or  by  delivery  to  the 
employer.  The  want  of,  or  any  defect  in  such  notice, 
or  in  its  service,  shall  not  be  a  bar  unless  the  employer 
proves  that  he  has,  in  fact,  been  thereby  prejudiced, 
or  if  such  want  or  defect  was  occasioned  by  mistake, 
physical  or  mental  incapacity  or  other  reasonable 
cause,  and  the  failure  to  make  a  claim  within  the 
period  above  specified  shall  not  be  a  bar,  if  such  failure 
was  occasioned  by  a  mistake,  physical  or  mental  in- 
capacity or  other  reasonable  cause." 

MASSACHUSETTS 
(L.  1911,  c.  751) 

"Part  II,  §  15.  No  proceedings  for  compensation 
for  an  injury  under  this  act  shall  be  maintained  unless 
a  notice  of  the  injury  shall  have  been  given  to  the 
association  or  subscriber  as  soon  as  practicable  after 
the  happening  thereof,  and  unless  the  claim  for  com- 
pensation with  respect  to  such  injury  shall  have  been 
made  within  six  months  after  the  occurrence  of  the 
same;  or,  in  case  of  the  death  of  the  employe,  or  in  the 
event  of  his  physical  or  mental  incapacity,  within  six 
months  after  death  or  the  removal  of  such  physical 
or  mental  incapacity. 

"§  16.  The  said  notice  shall  be  in  writing,  and  shall 
state  in  ordinary  language  the  time,  place  and  cause 
of  the  injury,  and  shall  be  signed  by  the  person  in- 
jured, or  by  a  person  in  his  behalf,  or,  in  the  event  of 
his  death,  by  his  legal  representative  or  by  a  person 
in  his  behalf,  or  by  a  person  to  whom  payments  may 
be  due  under  this  act  or  by  a  person  in  his  behalf. 


NOTICE   OF   CLAIM  367 

Massachusetts 

Any  form  of  written  communication  signed  by  any 
person  who  may  give  the  notice  as  above  provided, 
which  contains  the  information  that  the  person  has 
been  so  injured,  giving  the  time,  place  and  cause  of 
the  injury,  shall  be  considered  a  sufficient  notice." 
(As  amended  by  L.  1912,  c.  571.) 

"  §  17.  The  notice  shall  be  served  upon  the  associa- 
tion, or  an  officer  or  agent  thereof,  or  upon  the  sub- 
scriber, or  upon  one  subscriber,  if  there  are  more  sub- 
scribers than  one,  or  upon  any  officer  or  agent  of  a 
corporation  if  the  subscriber  is  a  corporation,  by  de- 
livering the  same  to  the  person  on  whom  it  is  to  be 
served,  or  leaving  it  at  his  residence  or  place  of  busi- 
ness, or  by  sending  it  by  registered  mail  addressed  to 
the  person  or  corporation  on  whom  it  is  to  be  served, 
at  his  last  known  residence  or  place  of  business. 

"§  18.  A  notice  given  under  the  provisions  of  this 
act  shall  not  be  held  invalid  or  insufficient  by  reason  of 
any  inaccuracy  in  stating  the  time,  place  or  cause  of 
the  injury,  unless  it  is  shown  that  it  was  the  intention 
to  mislead  and  the  association  was  in  fact  misled 
thereby.  Want  of  notice  shall  not  be  a  bar  to  pro- 
ceedings under  this  act,  if  it  be  shown  that  the  as- 
sociation, subscriber,  or  agent  had  knowledge  of  the 
mjury." 

"  §  23.  The  claim  for  compensation  shall  be  in 
writing  and  shall  state  the  time,  place,  cause  and 
nature  of  the  injury:  it  shall  be  signed  by  the  person 
injured  or  by  a  person  in  his  behalf,  or,  in  the  event 
of  his  death,  by  his  legal  representative  or  by  a  per- 
son in  his  behalf,  or  by  a  person  to  whom  payments 
may  be  due  under  this  act  or  by  a  person  in  his  be- 
half, and  shall  be  filed  with  the  industrial  accident 
board.    The  failure  to  make  a  claim  within  the  period 


368     Bradbury's  workmen's  compensation  law 

Michigan 

prescribed  by  section  fifteen  shall  not  be  a  bar  to  the 
maintenance  of  proceedings  under  this  act  if  it  is 
found  that  it  was  occasioned  by  mistake  or  other 
reasonable  cause."    (Added  by  L.  1912,  c.  751.) 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  II,  §  15.  No  proceedings  for  compensation 
for  an  injury  under  this  act  shall  be  maintained,  unless 
a  notice  of  the  injury  shall  have  been  given  to  the 
employer  three  months  after  the  happening  thereof, 
and  unless  the  claim  for  compensation  with  respect 
to  such  injury  shall  have  been  made  within  six  months 
after  the  occurrence  of  the  same;  or,  in  case  of  the 
death  of  the  employe,  or  in  the  event  of  his  physical 
or  mental  incapacity,  within  six  months  after  death 
or  the  removal  of  such  physical  or  mental  incapacity. 

"§  16.  The  said  notice  shall  be  in  writing,  and 
shall  state  in  ordinary  language  the  time,  place  and 
cause  of  the  injury;  and  shall  be  signed  by  the  person 
injured,  or  by  a  person  in  his  behalf,  or,  in  the  event 
of  his  death,  by  his  dependents  or  by  a  person  in 
their  behalf. 

"§  17.  The  notice  shall  be  served  upon  the  em- 
ployer or  an  agent  thereof.  Such  service  may  be 
made  by  delivering  said  notice  to  the  person  on  whom 
it  is  to  be  served,  or  leaving  it  at  his  residence  or  place 
of  business,  or  by  sending  it  by  registered  mail  ad- 
dressed to  the  person  or  corporation  on  whom  it  is  to 
be  served,  at  his  last  known  residence  or  place  of  busi- 
ness. 

"§18.  A  notice  given  under  the  provisions  of  this 
act  shall  not  be  held  invalid  or  insufficient  by  reason 
of  any  inaccuracy  in  stating  the  time,  place  or  cause   » 
of  the  injury,  unless  it  is  shown  that  it  was  th'e  inten- 


NOTICE   OF   CLAIM  369 


Nevada 


tion  to  mislead,  and  the  employer,  or  the  insurance 
company  carrying  such  risk,  or  the  commissioner  of 
insurance,  as  the  case  may  be,  was  in  fact  misled 
thereby.  Want  of  such  written  notice  shall  not  be 
a  bar  to  proceedings  under  this  act,  if  it  be  shown 
that  the  employer  had  notice  or  knowledge  of  the 
injury."  <^ 

NEVADA 

(L.  1911,  c.  183) 

"  §  4.  Notice  of  accidents  must  be  given  partnership 
or  corporation  carrying  on  any  to  the  employer  as 
soon  as  practicable  after  the  happening  thereof,  and 
the  claim  for  compensation  with  respect  to  such  acci- 
dent within  six  months  from  the  occurrence  of  such 
accident  causing  the  injury,  or  in  case  of  death,  within 
six  months  from  the  time  of  death;  'provided  always, 
that  the  want  of,  or  any  defect  or  inaccuracy  in,  such 
notice  shall  not  be  a  bar  to  the  maintenance  of  such 
proceedings  if  it  is  found  in  the  proceedings  for  settling 
the  claim  that  the  employer  is  not  prejudiced  in  his 
defense  by  the  want,  defect  or  inaccuracy,  and  that 
such  want,  defect  or  inaccuracy  was  occasioned  by 
mistake  or  other  reasonable  cause.  Notice  in  respect 
of  an  injury  under  this  act  shall  give  the  name  and  ad- 
dress of  the  person  injured,  and  shall  state  in  ordinary 
language  the  cause  of  the  injury,  if  known,  the  date  at 
which  it  was  sustained,  and  shall  be  served  on  the  em- 
ployer, or,  if  there  is  more  than  one  employer,  upon 
one  of  such  employers.  The  notice  may  be  served  by 
delivering  the  same  to  or  at  the  residence  or  place  of 
business  of  the  person  upon  whom  it  is  to  be  served,  or 
the  notice  may  also  be  served  by  post,  by  a  registered 
letter  addressed  to  the  person  on  whom  it  is  to  be 
served  at  his  last  known  place  of  residence  or  place  of 
24 


370    Bradbury's  workmen's  compensation  law 

New  Hampshire 

business,  and  if  served  by  post  shall  be  deemed  to  have 
been  served  at  the  time  when  the  letter  containing  the 
same  would  have  been  delivered  in  the  ordinary  course 
of  post,  and  in  proving  the  service  of  such  notice  it 
shall  be  sufficient  to  prove  that  the  notice  was  properly 
addressed  and  registered.  Where  the  employer  is  a 
body  of  persons,  natural  or  artificial,  the  notice  may 
also  be  served  by  delivering  the  same  at,  or  by  sending 
it  by  post  in  a  registered  letter  addressed  to  the  em- 
ployer at  the  office,  or,  if  there  be  more  than  one  office, 
any  one  of  the  offices  of  such  body." 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"  §  5.  No  proceedings  for  compensation  under  this 
act  shall  be  maintained  unless  notice  of  the  accident 
as  hereinafter  provided  has  been  given  to  the  employer 
as  soon  as  practicable  after  the  happening  thereof  and 
before  the  workman  has  voluntarily  left  the  employ- 
ment in  which  he  was  injured  and  during  such  dis- 
ability, and  unless  claim  for  compensation  has  been 
made  within  six  months  from  the  occurrence  of  the 
accident,  or  in  case  of  the  death  of  the  workman,  or  in 
the  event  of  his  physical  or  mental  incapacity,  within 
six  months  after  such  death  or  the  removal  of  such 
physical  or  mental  incapacity,  or  in  the  event  that 
weekly  payments  have  been  made  under  this  article, 
within  six  months  after  such  payments  have  ceased, 
but  no  want  or  defect  or  inaccuracy  of  a  notice  shall 
be  a  bar  to  the  maintenance  of  proceedings  unless  the 
employer  proves  that  he  is  prejudiced  by  such  want, 
defect  or  inaccuracy.  Notice  of  the  accident  shall 
appraise  the  employer  of  the  claim  for  compensation 
under  this  article,  and  shall  state  the  name  and  ad- 
dress of  the  workman  injured,  and  the  date  and  place 


NOTICE   OF   CLAIM  371 


New  Jersey 


of  the  accident.  The  notice  may  be  served  personally 
or  by  sending  it  by  mail  in  a  registered  letter  addressed 
to  the  employer  at  his  last  known  residence  or  place  of 
business." 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§II,  15.  As  to  notification  of  employer.  Unless 
the  employer  shall  have  actual  knowledge  of  the  oc- 
currence of  the  injury,  or  unless  the  employ^,  or  some 
one  on  his  behalf,  or  some  of  the  dependents,  or  some 
one  on  their  behalf,  shall  give  notice  thereof  to  the 
employer  within  fourteen  days  of  the  occurrence  of 
the  injury,  then  no  compensation  shall  be  due  until 
such  notice  is  given  or  knowledge  obtained.  If  the 
notice  is  given,  or  the  knowledge  obtained  within 
thirty  days  from  the  occurrence  of  the  injury,  no  want, 
failure,  or  inaccuracy  of  a  notice  shall  be  a  bar  to  ob- 
taining compensation,  unless  the  employer  shall  show 
that  he  was  prejudiced  by  such  want,  defect  or  in- 
accuracy, and  then  only  to  the  extent  of  such  preju- 
dice. If  the  notice  is  given,  or  the  knowledge  obtained 
within  ninety  days,  and  if  the  employ^,  or  other  bene- 
ficiary, shall  show  that  his  failure  to  give  prior  notice 
was  due  to  his  mistake,  inadvertence,  ignorance  of 
fact  or  law,  or  inability,  or  to  the  fraud,  misrepre- 
sentation or  deceit  of  another  person,  or  to  any  other 
reasonable  cause  or  excuse,  then  compensation  may 
be  allowed,  unless,  and  then  to  the  extent  only  that  the 
employer  shall  show  that  he  was  prejudiced  by  failure 
to  receive  such  notice.  Unless  knowledge  be  obtained, 
or  notice  given,  within  ninety  days  after  the  occur- 
rence of  the  injury,  no  compensation  shall  be  allowed." 

"§  II,  16.  Service  of  notice.  The  notice  referred  to 
may  be  served  personally  upon  the  employer,  or  upon 


372     Bradbury's  workmen's  compensation  law 

Rhode  Island 

any  agent  of  the  employer  upon  whom  a  summons  may 
be  served  in  a  civil  action,  or  by  sending  it  through 
the  mail  to  the  employer  at  the  last  known  residence 
or  business  place  thereof  within  the  State,  and  shall 
be  substantially  in  the  following  form : 
"  Form  of  notice.  Sufficiency  of  notice. 
"  To  (name  of  employer) : 

You  are  hereby  notified  that  a  personal  injury 
was  received  by  (name  of  employ^  injured),  who 
.  was  in  your  employ  at  (place)  while  engaged  as 
(nature  of  employment),  on  or  about  the  (  ) 

day  of  (  ),  nineteen  hundred  and  (  ), 

and  that  compensation  will  be  claimed  therefor. 

Signed, 

(  ). 

but  no  variation  from  this  form  shall  be  material  if  the 
notice  is  sufficient  to  advise  the  employer  that  a  cer- 
tain employe,  by  name,  received  an  injury  in  the 
course  of  his  employment  on  or  about  a  specified  time, 
at  or  near  a  certain  place.  Notice  served  at  the  office 
of,  or  on  the  person  who  was  the  employer's  immediate 
superior,  shall  be  a  compliance  with  this  act." 

OHIO 

(L.  1911,  c.  000) 

Governed  by  rules  of  the  State  Liability  Board  of 
Awards.      §§  8  and   16.      See  Chapter  XXIV,  post. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  17.  Notice  of  injury.  No  proceedings 
for  compensation  for  an  injury  under  this  act  shall  be 
maintained  unless  a  notice  of  the  injury  shall  have 


NOTICE   OF   CLAIM  373 


Rhode  Island 


been  given  to  the  employer  within  thirty  days  after 
the  happening  thereof;  and  unless  the  claim  for  com- 
pensation with  respect  to  such  injury  shall  have  been 
made  within  one  year  after  the  occurrence  of  the 
same,  or,  in  case  of  the  death  of  the  employ^,  or  in  the 
event  of  his  physical  or  mental  incapacity,  within  one 
year  after  death  or  the  removal  of  such  physical  or 
mental  incapacity. 

**§  18.  Such  notice  shall  be  in  writing  and  shall 
state  in  ordinary  language  the  nature,  time,  place, 
and  cause  of  the  injury,  and  the  name  and  address  of 
the  person  injured  and  shall  be  signed  by  the  person 
injured,  or  by  a  person  in  his  behalf,  or,  in  the  event 
of  his  death,  by  his  legal  representative,  or  by  a  de- 
pendent, or  by  a  person  in  behalf  of  either. 

"§  19.  Such  notice  shall  be  served  upon  the  em- 
ployer, or  upon  one  employer,  if  there  are  more  em- 
ployers than  one,  or,  if  the  employer  is  a  corporation, 
upon  any  officer  or  agent  upon  whom  process  may  be 
served,  by  delivering  the  same  to  the  person  on  whom 
it  is  to  be  served,  or  by  leaving  it  at  his  last  known 
residence  or  place  of  business,  or  by  sending  it  by 
registered  mail  addressed  to  the  person  to  be  served, 
or,  in  the  case  of  a  corporation,  to  the  corporation 
itself,  at  his  or  its  last  known  residence  or  place  of 
business;  and  such  mailing  of  the  notice  shall  con- 
stitute completed  service. 

**  §  20.  A  notice  given  under  the  provisions  of  this 
act  shall  not  be  held  invalid  or  insufficient  by  reason 
of  any  inaccuracy  in  stating  the  nature,  time,  place 
or  cause  of  the  injury,  or  the  name  and  address  of  the 
person  injured,  unless  it  is  shown  that  it  was  the  in- 
tention to  mislead  and  the  employer  was  in  fact  mis- 
led thereby.  Want  of  notice  shall  not  be  a  bar  to 
proceedings  under  this  act,  if  it  be  shown  that  the 


374    Bradbury's  workmen's  compjensation  law 

Washington 

employer  or  his  agent  had  knowledge  of  the  injury, 
or  that  failure  to  give  such  notice  was  due  to  accident, 
mistake,  or  unforeseen  cause." 

WASHINGTON 

(L.  1911,  c.  74) 

"  §  12.  Filing  Claim  for  Compensation. 

"  (a)  Where  a  workman  is  entitled  to  compensation 
under  this  act  he  shall  file  with  the  department,  his 
application  for  such,  together  with  the  certificate  of 
the  physician  who  attended  him,  and  it  shall  be  the 
duty  of  the  physician  to  inform  the  injured  workman 
of  his  rights  under  this  act  and  to  lend  all  necessary 
assistance  in  making  this  application  for  compensation 
and  such  proof  of  other  matters  as  required  by  the 
rules  of  the  department  without  charge  to  the  work- 
man. 

"(6)  Where  death  results  from  injury  the  parties 
entitled  to  compensation  under  this  act,  or  some  one 
in  their  behalf,  shall  make  application  for  the  same 
to  the  department,  which  application  must  be  accom- 
panied with  proof  of  death  and  proof  of  relationship 
showing  the  parties  to  be  entitled  to  compensation 
under  this  act,  certificates  of  attending  physician,  if 
any,  and  such  other  proof  as  required  by  the  rules  of 
the  department. 

"  (c)  If  change  of  circumstance  warrant  an  increase 
or  rearrangement  of  compensation,  like  application 
shall  be  made  therefor.  No  increase  or  rearrangement 
shall  be  operative  for  any  period  prior  to  application 
therefor. 

■  "(d)  No  application  shall  be  valid  or  claim  there- 
under enforceable  unless  filed  within  one  year  after 
the  day  upon  which  the  injury  occurred  or  the  right 
thereto  accrued." 


NOTICE   OF   CLAIM  375 


Wisconsin 


WISCONSIN 

(L.  1911,  c.  50) 

"§2394-11.  No  claim  to  recover  compensation 
mider  this  act  shall  be  maintained  unless,  within 
thirty  days  after  the  occurrence  of  the  accident  which 
is  claimed  to  have  caused  the  injury  or  death,  notice 
in  writing,  stating  the  name  and  address  of  the  person 
injured,  the  time  and  place  where  the  accident  oc- 
curred, and  the  nature  of  the  injury,  and  signed  by 
the  person  injured  or  by  some  one  on  his  behalf,  or  in 
case  of  his  death,  by  a  dependent  or  some  one  on  his 
behalf,  shall  be  served  upon  the  employer,  either  by 
delivering  to  and  leaving  with  him  a  copy  of  such 
notice,  or  by  mailing  to  him  by  registered  mail  a  copy 
thereof  in  a  sealed  and  postpaid  envelope  addressed  to 
him  at  his  last  known  place  of  business  or  residence. 
Such  mailing  shall  constitute  completed  service. 
Provided,  however,  that  any  payment  of  compensa- 
tion under  this  act,  in  whole  or  in  part,  made  by  the 
employer  before  the  expiration  of  said  thirty  days, 
shall  be  equivalent  to  the  notice  herein  required;  and 
provided  further,  that  the  failure  to  give  any  such 
notice,  or  any  defect  or  inaccuracy  therein,  shall  not 
be  a  bar  to  recovery  under  this  act  if  it  is  found  as  a 
fact  in  the  proceedings  for  collection  of  the  claim  that 
there  was  no  intention  to  mislead  the  employer,  and 
that  he  was  not  in  fact  misled  thereby;  and  provided 
further,  that  if  no  such  notice  is  given  and  no  payment 
of  compensation  made,  within  two  years  from  the  date 
of  the  accident,  the  right  to  compensation  therefor 
shall  be  wholly  barred." 

The  statute  does  not  specify  the  form  of  the  notice. 
For  form  under  New  Jersey  Act  see  ante,  page  372. 


CHAPTER  XXII 

LIMITATIONS  ON  ACTIONS  AND   PROCEEDINGS 
UNDER  ACT 

Page  Page 

California 376     New  Hampshire 380 

Illinois 377     New  Jersey 380 

Kansas 377     Ohio 380 

Massachusetts 378     Rhode  Island 381 

Michigan 379     Washington 381 

Nevada 379     Wisconsin 382 

Where  compensation  has  been  paid  some  time,  and 
upon  a  reference  to  a  medical  referee  it  is  found  that 
incapacity  has  ceased  and  compensation  is  stopped  the 
certificate  is  not  a  bar  to  the  appHcation  of  the  workman 
for  further  compensation  when  the  incapacity  has  re- 
curred, where  there  is  a  mere  acquiescence  by  the 
workman  as  to  the  nonpayment  and  no  proceedings 
are  taken  on  the  report  of  the  referee.  It  is  held  that 
in  such  a  case  the  matter  is  merely  allowed  to  go  to 
sleep  and  that  the  compensation  is  not  terminated  in 
a  manner  which  is  binding  on  either  party.  United 
Collieries  v.  King  (1909),  47  Scotch  L.  R.  41;  3  B.  W. 
C.  C.  546. 

CALIFORNIA 
(L.  1911,  c.  399) 

Notice  of  accident  must  be  given  within  thirty  days. 
§  10.  See  Chapter  XXI,  ante,  page  363.  But  may  be 
implied.  Id.  If  not  given  at  all  within  one  year  the 
right  to  compensation  is  wholly  lost.    Id. 

376 


LIMITATIONS  377 


Kansas 


Notice  of  hearing  on  application  to  the  Board  must 
be  for  a  time  not  more  than  forty  days  after  fihng  the 
apphcation.     §  15.    See  Chapter  XXIV,  post,  page  409. 

Appeal  may  be  taken  within  thirty  days  after  judg- 
ment rendered  on  an  award.  §  18.  See  Chapter  XXV, 
post,  page  454. 

Notice  of  hearing  before  the  Board,  ten  days.  §  15. 
See  Chapter  XXIV,  post,  page  409. 

ILLINOIS 

(L.  1911,  c.  000) 

Notice  must  be  given  "as  soon  as  practicable" 
after  the  accident;  and  proceedings  on  a  claim  for 
compensation  must  be  taken  within  six  months  after 
the  injury,  except  in  cases  of  temporary  injury.  See 
§  14,  Chapter  XXI,  ante,  page  364. 

Parties  must  appear  before  arbitrators  within  ten 
days  after  appointment.  §  10.  See  Chapter  XXIV, 
post,  page  411. 

Appeals  to  the  Circuit  Court  from  the  decisions  of 
arbitrators  must  be  taken  within  twenty  days  after  the 
filing  of  the  report  of  the  arbitrators.  §  10.  See  Chap- 
ter XXIV,  post,  page  411. 

KA.NSAS 

(L.  1911,  c.  218) 

"§  10.  Incompetency  of  workman.  In  case  an  in- 
jured workman  is  mentally  incompetent  or  a  minor,  or 
where  death  results  from  the  injury,  in  case  any  of  his 
dependents  as  herein  defined  is  mentally  incompetent 
or  a  minor,  at  the  time  when  any  right,  privilege  or 
election  accrues  to  him  under  this  act,  his  guardian 
may,  in  his  behalf,  claim  and  exercise  such  right,  privi- 


378    Bradbury's  workmen's  compensation  law 

Massachusetts 

lege,  or  election,  and  no  limitation  of  time,  in  this  act 
provided  for,  shall  run,  so  long  as  such  incompetent  or 
minor  has  no  guardian." 

"  §  22.  Notice  and  claim.  Proceedings  for  the  re- 
covery of  compensation  under  this  act  shall  not  be 
maintainable  unless  written  notice  of  the  accident, 
stating  the  time,  place,  and  particulars  thereof,  and 
the  name  and  address  of  the  person  injured,  has  been 
given  within  ten  days  after  the  accident,  and  unless 
a  claim  for  compensation  has  been  made  within  six 
months  after  the  accident,  or  in  case  of  death,  within 
six  months  from  the  date  thereof.  Such  notice  shall 
be  delivered  by  registered  mail,  or  by  delivery  to  the 
employer.  The  want  of,  or  any  defect  in  such  notice, 
or  in  its  service,  shall  not  be  a  bar  unless  the  employer 
proves  that  he  has,  in  fact,  been  thereby  prejudiced, 
or  if  such  want  or  defect  was  occasioned  by  mistake, 
physical  or  mental  incapacity  or  other  reasonable 
cause,  and  the  failure  to  make  a  claim  within  the 
period  above  specified  shall  not  be  a  bar,  if  such  failure 
was  occasioned  by  a  mistake,  physical  or  mental  in- 
capacity or  other  reasonable  cause." 

"§  37.  When  the  cause  of  action  accrues.  The  cause 
of  action  shall  be  deemed  in  every  case,  including  a 
case  where  death  results  from  the  injury  to  have  ac- 
crued to  the  injured  workman  at  the  time  of  the  acci- 
dent; and  the  time  limited  in  which  to  commence  an 
action  for  compensation  therefor  shall  run  as  against 
him,  his  legal  representatives  and  dependents  from 
that  date." 

MASSACHUSETTS 

(L.  1911,  e.  751) 

"Part  II,  §  14.  If  an  injured  employ^  is  mentally 
incompetent  or  is  a  minor  at  the  time  when  any  right 


LIMITATIONS  379 


Nevada 


or  privilege  accrues  to  him  under  this  act,  his  guardian 
or  next  friend  may  in  his  behalf  claim  and  exercise 
such  right  or  privilege." 

Notice  of  the  injury  must  be  given  within  six  months 
after  it  occurs.  Part  II,  §  15.  See  Chapter  XXI,  ante, 
page  366. 

A  petition  to  review  a  finding  of  a  committee  of 
arbitration  must  be  filed  within  seven  days  after  the 
finding  is  filed  with  the  Industrial  Accident  Board. 
Part  III,  §  7.     See  Chapter  XXIV,  post,  page  420. 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  VI,  §  2.  If  the  provisions  of  this  act  relating 
to  compensation  for  injuries  to  or  death  of  workmen 
shall  be  repealed  or  adjudged  invalid  or  unconstitu- 
tional, the  period  intervening  between  the  occurrence 
of  an  injury  or  death  and  such  repeal,  or  the  final 
adjudication  of  invalidity,  shall  not  be  computed  as 
a  part  of  the  time  limited  by  law  for  the  commence- 
ment of  any  action  relating  to  such  injury  or  death, 
but  the  amount  of  any  compensation  which  may  have 
been  paid  for  any  such  injury  shall  be  deducted  from 
any  judgment  for  damages  recovered  on  account  of 
such  injury." 

NEVADA 

(L.  1911,  c.  183) 

Notice  of  claim  within  six  months  after  accident. 
See  §  4,  in  Chapter  XXI,  ante,  page  369. 

Time  within  which  arbitration  proceedings  must  be 
heard.     See  §  8,  in  Chapter  XXIV,  post,  page  426. 


380    Bradbury's  workmen's  compensation  law 

Ohio 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

See  §  5,  reprinted  in  Chapter  XXI,  ante,  page  370, 
for  time  in  which  notice  must  be  given  and  other  pro- 
ceedings taken  under  Act. 

"§  8.  In  case  an  injured  workman  shall  be  mentally 
incompetent  at  the  time  when  any  right  or  privilege 
accrues  to  him  under  this  act,  the  guardian  of  the  in- 
competent appointed  pursuant  to  law  may,  on  behalf 
of  such  incompetent  claim  and  exercise  any  such  right 
or  privilege  with  the  same  force  and  effect  as  if  the 
workman  himself  had  been  competent  and  had  claimed 
or  exercised  any  such  right  or  privilege,  and  no  limita- 
tion of  time  in  this  act  provided  for  shall  run-  so  long 
as  said  incompetent  workman  has  no  guardian." 

For  time  within  which  to  serve  notice  of  injury  see 
§  5,  in  Chapter  XXI,  ante,  page  370. 

Notice  of  proceedings  in  court;  see  §  9,  in  Chapter 
XXIV,  post,  page  427: 

NEW  JERSEY 

(L.  1911,  c.  95) 

Notice  of  the  injury  must  be  given  by  the  employ 6 
to  the  employer  within  ninety  days  after  the  accident 
unless  the  employer  has  actual  knowledge  thereof. 
See  §  2,  paragraph  15,  Chapter  XXI,  ante,  pa,ge  371. 

OHIO 

(L.  1911,  c.  000) 

Governed  by  rules  of  the  State  Liability  Board  of 
awards.  §§  8  and  16.  See  Chapter  XXIV,  post, 
pages  434-436. 


LIMITATIONS      •  381 


Washington 


As   to  appeals  see  §  36,  in   Chapter  XXIV,  post, 
page  436. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  Ill,  §  18.  Claim  when  barred.  An  employe's 
claim  for  compensation  under  this  act  shall  be  barred 
unless  an  agreement  or  a  petition,  as  provided  in  this 
Article,  shall  be  filed  within  two  years  after  the  oc- 
currence of  the  injury,  or,  in  case  of  the  death  of  the 
employ^,  or,  in  the  event  of  his  physical  or  mental 
incapacity,  within  two  years  after  the  death  of  the 
employe  or  the  removal  of  such  physical  or  mental 
incapacity." 

WASHINGTON 
(L.  1911,  c.  74) 

"No  application  for  (compensation  under  the  Act) 
shall  be  valid  or  claim  thereunder  enforceable  unless 
filed  within  one  year  after  the  day  upon  which  the 
injury  occurred  or  the  right  thereto  accrued."  §  12,  (d). 
See  Chapter  XXI,  ante,  page  374. 

"§28.  Statute  of  Limitations  Saved.  If  the  pro- 
visions of  this  act  relative  to  compensation  for  in- 
juries to  or  death  of  workmen  become  invalid  because 
of  any  adjudication,  or  be  repealed,  the  period  inter- 
vening between  the  occurrence  of  an  injury  or  death, 
not  previously  compensated  for  under  this  act  by 
lump  payment  or  completed  monthly  payments,  and 
such  repeal  or  the  rendition  of  the  final  adjudication 
of  the  invalidity  shall  not  be  computed  as  a  part  of 
the  time  limited  by  law  for  the  commencement  of  any 
action  relating  to  such  injury  or  death:  Provided,  That 
such  action  be  commenced  within  one  year  after  such 
repeal  or  adjudication;  but  in  any  such  action  any 


382    Bradbury's  workmen's  compensation  law 

Wisconsin 

sum  paid  out  of  the  accident  fund  to  the  workman  on 
account  of  injury,  to  whom  the  action  is  prosecuted, 
shall  be  taken  into  account  or  disposed  of  as  follows: 
If  the  defendant  employer  shall  have  paid  without 
delinquency  into  the  accident  fund  the  payment  pro- 
vided by  section  4,  such  sums  shall  be  credited  upon 
the  recovery  as  payment  thereon,  otherwise  the  sum 
shall  not  be  so  credited  but  shall  be  deducted  from  the 
sum  collected  and  be  paid  into  the  said  fund  from 
which  they  had  been  previously  disbursed." 

WISCONSIN 

Notice  must  be  given  within  thirty  days.  See 
§  2394-11,  Chapter  XXI,  ante,  page  375. 

Compromises  may  be  modified  within  one  year  after 
they  are  made.  §  2394-15,  Chapter  XXIV,  post, 
page  448, 

A  notice  of  hearing  on  any  application  made  to  the 
Industrial  Accident  Board  shall  be  made  for  a  time  not 
more  than  forty  days  after  the  filing  of  the  application. 
See  §  2394-16,  Chapter  XXIV,  post,  page  448. 

Within  twenty  days  from  the  date  of  an  award  a 
party  can  begin  an  action  for  a  review  thereof.  §  2394- 
19.  Chapter  XXV,  post,  page  466,  The  Board  must 
serve  its  answer  within  the  same  leng^th  of  time.    Id. 


CHAPTER  XXIII 

EXAMINATIONS  BY  PHYSICIANS 

Page 

1.  Demand  that  workman's  attorney  be  present  at  medical  ex- 

amination   383 

2.  Unreasonable  demand  that  workman's  medical  attendant 

be  present  at  examination 384 

3.  Cause  of  death  submitted  to  medical  referee 384 

4.  Refusal  of  workman  to  undergo  surgical  operation 385 

5.  Medical  referee's  report  not  conclusive  on  arbitrator 386 

Page  Page 

California 386     New  Hampshire 392 

Illinois 387     New  Jersey 392 

Kansas 388     Ohio 393 

Massachusetts 390     Rhode  Island 393 

Michigan 391     Washington 394 

Nevada 391     Wisconsin 395 

1.  Demand  that  workman's  attorney  be  present  at 
medical  examination. 
A  workman  in  receipt  of  compensation  under  the 
Act  was  required  by  his  employers  to  submit  himself  for 
examination  by  a  certain  duly  qualified  medical  prac- 
titioner. The  workman  refused  to  do  so  unless  the 
examination  was  at  his  solicitors'  office  or  in  his  solici- 
tors' presence.  The  employers  repeated  their  request, 
but  stated  that  the  workman's  medical  adviser  might 
attend  at  the  examination.  The  workman  again  re- 
fused unless  his  conditions  were  complied  with.  It 
was  held  on  these  facts  that  there  was  a  refusal  to 
submit  to  a  medical  examination.  The  court  said: 
"It  cannot  be  too  well  known  that  a  soUcitor's  office  is 

383 


h 


384     Bradbury's  workmen's  compensation  law 

Cause  of  death  submitted  to  medical  referee 

not,  in  ordinary  circumstances,  a  proper  place  at  which 
to  hold  a  medical  examination  of  a  workman."  Warby 
V.  Plaistowe  &  Co.  (1910),  4  B.  W.  C.  C.  67. 

2.  Unreasonable   demand   that   workman's   medical 

attendant  be  present  at  examination. 
A  workman  having  claimed  compensation  under  the 
Act  of  1906,  his  employers  required  him  to  submit  him- 
self for  medical  examination.  The  workman  refused 
except  on  condition  that  his  own  medical  attendant 
should  be  present  throughout  the  examination.  He 
conceded  that  there  were  no  special  circumstances  in 
his  case  which  called  for  the  presence  of  his  medical 
attendant.  It  was  held  that  the  workman's  refusal  to 
submit  to  examination  unless  his  own  medical  attend- 
ant was  present  was  a  ''refusal  within  the  Act."  Mor- 
gan V.  William  Dixon  (1910),  48  Scotch  L.  R.  296;  4 
B.  W.  C.  C.  363.  A  workman  who  refuses  to  be  ex- 
amined by  the  employer's  physician  unless  the  work- 
man's own  medical  adviser  is  present,  does  not  refuse 
to  submit  himself  to  such  examination  or  obstruct  the 
same,  within  the  meaning  of  the  Act.  Devitt  and  Crosby 
Magee  v.  The  Owners  of  the  S.  S.  '' Bainbridge''  (1909), 
2K.  B.  802;2B.W.  C.  C.  383. 

3.  Cause  of  death  submitted  to  medical  referee. 

A  workman  was  injured  and  afterward  died  in  the 
hospital.  His  dependent  claimed  compensation,  and 
on  the  hearing  conflicting  medical  evidence  was  given 
as  to  the  cause  of  death.  The  County  Court  judge 
thereupon  submitted  the  matter  to  a  medical  referee, 
in  accordance  with  Schedule  II  (15)  of  the  Act,  which 
provides  that  the  judge  may  submit  to  a  referee  any 


EXAMINATIONS   BY   PHYSICIANS  385 

Refusal  of  workman  to  undergo  surgical  operation 

matter  which  seems  material,  "subject  to  regulations 
made  by  the  Secretary  of  State  and  the  Treasury." 
These  regulations  (dated  June  24,  1907),  in  fact,  deal 
only  with  the  case  of  a  living  workman.  It  was  held 
that  the  judge  had,  nevertheless,  jurisdiction  to  sub- 
mit for  report  the  question  of  the  cause  of  death." 
Carolan  v.  Harrington  &  Sons  (1911),  2  K.  B.  733;  4  B. 
W.  C.  C.  253. 

4.  Refusal  of  workman  to  undergo  surgical  operation. 

An  employer  is  not  entitled  to  have  compensation 
terminated  because  of  the  refusal  of  the  workman  to 
undergo  an  operation  unless  he  can  show  clearly  that 
the  refusal  of  the  workman  was  unreasonable.  Pro- 
prietors of  Hays  Wharf  v.  Brown  (1909),  3  B.  W.  C.  C. 
84.  The  onus  rests  upon  the  employer  to  show  that 
a  workman  unreasonably  refused  to  submit  to  an 
operation  whereby  it  is  alleged  that  the  operation 
would  have  cured  the  disability.  Marshall  v.  Orient 
Steam  Navigation  Co.  (1910),  1  K.  B.  79;  3  B.  W.  C.  C. 
15.  So  held  where  a  ship's  fireman  whose  finger  was 
injured  refused  to  have  an  incision  made  as  advised  by 
the  ship's  doctor,  who  declared  that  such  an  incision 
would  have  saved  the  finger,  and  the  workman's 
doctor  declared  to  the  contrary.  Id.  The  refusal  by  a 
workman  to  undergo  a  surgical  operation  must  be 
reasonable  or  he  will  not  be  entitled  to  a  continuance 
of  the  compensation  awarded.  Paddington  Borough 
Council  V.  Stack  (1909),  2  B.  W.  C.  C.  402.  Where  a 
workman  refuses  to  submit  to  a  surgical  operation  of 
a  simple  character,  involving  no  serious  risk  to  fife  and 
health,  and  which,  according  to  the  unanimous  pro- 
fessional evidence,  offers  a  reasonable  prospect  of  the 
25 


386     Bradbury's  workmen's  compensation  law 

California 

removal  of  the  incapacity  from  which  he  suffers,  is 
debarred  from  any  right  to  claim  further  compensation. 
Such  continuance  of  his  disability  is  not  attributable  to 
the  original  accident,  but  to  his  unreasonable  refusal 
to  avail  himself  of  surgical  treatment.  Warncken  v. 
Richard  Moreland  &  Son  (1908),  100  L.  T.  12;  2  B.  W. 
C.  C.  350.  A  workman  injured  by  accident  arising  out 
of  and  in  the  course  of  his  employment,  who  refuses, 
on  the  advice  of  his  own  doctor,  to  submit  to  a  surgical 
operation,  which,  in  the  opinion  of  such  medical  man, 
involved  some  risk  to  his  hfe,  is  not  acting  unreasonably 
in  such  refusal,  and  is  not  thereby  precluded  from 
claiming  compensation  because  of  his  continued  dis- 
ability to  work.  Tutton  v.  Owners  of  Steamship  "Majes- 
tic'' (1909),  100  L.  T.  644;  2  B.  W.  C.  C.  346. 

5.  Medical  referee^s  report  not  conclusive  on  arbi- 
trator. 
Where  the  County  Court  judge  submits  to  a  medical 
referee  for  report  any  matter  which  seems  material  to 
any  question  arising  in  the  arbitration  the  judge  is  not 
bound  by  the  referee's  report,  but  should  exercise  an 
independent  judgment.  Quinn  v.  Flynn  (1910),  44 
Irish  L.  T.  R.  183;  3  B.  W.  C.  C.  594. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§11.  Wherever  in  case  of  injury  the  right  to  com- 
pensation under  this  act  would  exist  in  favor  of  any 
employe,  he  shall,  upon  the  written  request  of  his  em- 
ployer, submit  from  time  to  time  to  examination  by  a 
regular  practicing  physician,  who  shall  be  provided 
and  paid  for  by  the  employer,  and  shall  likewise  sub- 


EXAMINATIONS  BY   PHYSICIANS  387 

Illinois 

mit  to  examination  from  time  to  time  by  any  regular 
physician  selected  by  said  Industrial  Accident  Board, 
or  any  member  or  examiner  thereof.  The  employe 
shall  be  entitled  to  have  a  physician  provided  and 
paid  for  by  himself  present  at  any  such  examination. 
So  long  as  the  employe,  after  such  written  request  of 
the  employer,  shall  refuse  to  submit  to  such  examina- 
tion, or  shall  in  any  way  obstruct  the  same,  his  right 
to  begin  or  maintain  any  proceeding  for  the  collection 
of  compensation  shall  be  suspended,  and  if  he  shall 
refuse  to  submit  to  such  examination  after  direction 
by  the  board,  or  any  member  or  examiner  thereof,  or 
shall  in  any  way  obstruct  the  same,  his  right  to  the 
weekly  indemnity  which  shall  accrue  and  become  pay- 
able during  the  period  of  such  refusal  or  obstruction, 
shall  be  barred.  Any  physician  who  shall  make  or  be 
present  at  any  such  examination  may  be  required  to 
testify  as  to  the  results  thereof." 

ILLINOIS 

(L.  1911,  c.  000) 

"§9.  Any  employ^  entitled  to  receive  disability 
payments  shall  be  required  if  requested  by  the  em- 
ployer to  submit  himself  for  examination  at  the  ex- 
pense of  the  employer  to  a  duly  qualified  medical 
practitioner  or  surgeon  selected  by  the  employer,  at  a 
time  and  place  reasonably  convenient  for  the  em- 
ploye, as  soon  as  practicable  after  the  injury,  and  also 
one  week  after  the  first  examination,  and  thereafter 
at  intervals  not  oftener  than  once  every  four  weeks, 
which  examinations  shall  be  for  the  purpose  of  de- 
termining the  nature,  extent  and  probable  duration  of 
the  injury  received  by  the  employe,  and  for  the  pur- 
pose of  adjusting  the  compensation  which  may  be  due 
the  employe  from  time  to  time  for  disability  according 


388     Bradbury's  workmen's  compensation  law 

Kansas 

to  the  provisions  of  Sections  4  and  5  of  this  Act :  Pro- 
vided, However,  that  such  examination  shall  be  made 
in  the  presence  of  a  duly  qualified  medical  practi- 
tioner or  surgeon  provided  and  paid  for  by  the  em- 
ploye, if  such  employe  so  desires,  and  in  the  event  of  a 
disagreement  between  said  medical  practitioners  or 
surgeons  as  to  the  nature,  extent  or  probable  duration 
of  said  injury  or  disability,  they  may  agree  upon  a 
third  medical  practitioner  or  surgeon,  and,  failing  to 
agree  upon  such  third  medical  practitioner  or  surgeon, 
the  judge  of  the  county  court  of  the  county  where  the 
employe  resided  or  was  employed  at  the  time  of  the 
injury,  shall  within  six  days  after  petition  filed  in  such 
court  for  that  purpose,  select  a  third  medical  practi- 
tioner or  surgeon  and  the  majority  report  of  such  three 
physicians  as  to  the  nature,  extent  and  probable  dura- 
tion of  such  injury  or  disability  shall  be  used  for  the 
purpose  of  estimating  the  amount  of  compensation 
payable  under  this  Act.  If  the  employe  refuses  so  to 
submit  himself  to  examination  or  unnecessarily  ob- 
structs the  same,  his  right  to  compensation  payments 
shall  be  temporarily  suspended  until  such  examination 
shall  have  taken  place,  and  no  compensation  shall  be 
payable  under  this  Act  during  such  period." 

KANSAS 

(L.  1911,  c.  218) 

"§  17.  Medical  examination,  (a)  After  an  injury  to 
the  employ^,  if  so  requested  by  his  employer,  the 
employ^  must  submit  himself  to  examination  at  some 
reasonable  time  to  a  reputable  physician  selected  by 
the  employer,  and  from  time  to  time  thereafter  during 
the  pendency  of  his  claim  for  compensation,  or  during 
the  receipt  by  him  for  payment  under  this  act,  but  he 
shall  not  be  required  to  so  submit  himself,  more  than 


EXAMINATIONS   BY   PHYSICIANS  389 

Kansas 

once  in  two  weeks  unless  in  accordance  with  such 
orders  as  may  be  made  by  the  proper  court  or  judge 
thereof.  Either  party  may  upon  demand  require  a 
report  of  any  examination  made  by  the  physician  of 
the  other  party  upon  payment  of  a  fee  of  one  dollar 
therefor.  (6)  If  the  employe  request  he  shall  be  en- 
titled to  have  a  physician  of  his  own  selection  present 
at  the  time  to  participate  in  such  examinations, 
(c)  Unless  there  has  been  a  reasonable  opportunity 
thereafter  for  such  physician  selected  by  the  employ^ 
to  participate  in  the  examination  in  the  presence  of 
the  physician  selected  by  the  employer,  the  physician 
selected  by  the  employer  shall  not  be  permitted  after- 
wards to  give  evidence  of  the  condition  of  the  em- 
ploy^ in  a  dispute  as  to-  the  injury,  (d)  Except  as 
provided  herein  in  this  act  there  shall  be  no  other  dis- 
qualification or  privilege  preventing  the  testimony  of 
a  physician  who  actually  makes  an  examination." 

"§  18.  Medical  examination  by  neutral  physician. 
In  case  of  a  dispute  as  to  the  injury,  the  committee, 
or  arbitrator  as  hereinafter  provided,  or  the  judge  of 
the  district  court  shall  have  the  power  to  employ  a 
neutral  physician  of  good  standing  and  ability,  whose 
duty  it  shall  be,  at  the  expense  of  the  parties  to  make 
an  examination  of  the  injured  person,  as  the  court 
may  direct,  on  the  petition  of  either  or  both  the  em- 
ployer and  employe  or  dependents." 

"§19.  Testimony  by  court  physician.  If  the  em- 
ployer or  the  employ^  has  a  physician  make  such  an 
examination  and  no  reasonable  opportunity  is  given 
to  the  other  party  to  have  his  physician  make  exami- 
nation, then,  in  case  of  a  dispute  as  to  the  injury,  the 
physician  of  the  party  making  such  examination  shall 
not  give  evidence  before  the  court  unless  a  neutral 
physician  either  has  examined  or  then  does  examine 


390    Bradbury's  workmen's  compensation  law 

Massachusetts 

the  injured  employ 6  and  give  testimony  regarding  the 
injuries." 

"  §  20.  Refusal  of  medical  examination.  If  the  em- 
ploy6  shall  refuse  examination  by  physician  selected 
by  the  employer  with  the  presence  of  a  physician 
of  his  own  selection,  and  shall  refuse  an  examination 
by  the  physician  appointed  by  the  court,  he  shall  have 
no  right  to  compensation  during  the  period  from  re- 
fusal until  he,  or  some  one  in  his  behalf,  notifies  the 
employer  or  the  court  that  he  is  wilUng  to  have  such 
examination." 

"§21.  Certificate  of  physician.  A  physician  mak- 
ing an  examination  shall  give  to  the  employer  and 
to  the  workman  a  certificate  as  to  the  condition  of 
the  workman,  but  such  certificate  shall  not  be  com- 
petent evidence  of  that  condition  unless  supported 
by  his  testimonv  if  his  testimony  would  have  been 
admissible." 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  II,  §  19.  After  an  employ^  has  received  an 
injury  and  from  time  to  time  thereafter  during  the 
continuance  of  his  disability  he  shall,  if  so  requested 
by  the  association  or  subscriber,  submit  himself  to  an 
examination  by  a  physician  or  surgeon  authorized  to 
practice  medicine  under  the  laws  of  the  common- 
wealth, furnished  and  paid  for  by  the  association  or 
subscriber.  The  employe  shall  have  the  right  to  have 
a  physician  provided  and  paid  for  by  himself  present 
at  the  examination.  If  he  refuses  to  submit  himself 
for  the  examination,  or  in  any  way  obstructs  the  same, 
his  right  to  compensation  shall  be  suspended,  and  his 
compensation  during  the  period  of  suspension  may  be 
forfeited."    (As  amended  by  L.  1912,  c.  571.) 


EXAMINATIONS   BY   PHYSICIANS  391 

Nevada 

MICHIGAN 

(L.  1912,  c.  000) 

"Part  II,  §  19.  After  an  employ^  has  given  notice 
of  an  injury,  as  provided  by  this  act,  and  from  time 
to  time  thereafter  during  the  continuance  of  his  dis- 
abiUty,  he  shall,  if  so  requested  by  the  employer,  or 
the  insurance  company  carrying  such  risk,  or  the 
commissioner  of  insurance,  as  the  case  may  be,  sub- 
mit himself  to  an  examination  by  a  physician  or 
surgeon  authorized  to  practice  medicine  under  the 
laws  of  the  state,  furnished  and  paid  for  by  the  em- 
ployer, or  the  insurance  company  carrying  such  risk, 
or  the  commissioner  of  insurance,  as  the  case  may  be. 
The  employe  shall  have  the  right  to  have  a  physician 
provided  and  paid  for  by  himself  present  at  the  ex- 
amination. If  he  refuses  to  submit  himself  for  the 
examination,  or  in  any  way  obstructs  the  same,  his 
right  to  compensation  shall  be  suspended,  and  his 
compensation  during  the  period  of  suspension  may 
be  forfeited.  Any  physician  who  shall  make  or  be 
present  at  any  such  examination  may  be  required  to 
testify  under  oath  as  to  the  results  thereof. 

"Part  III,  §9.  The  industrial  accident  board  or 
any  member  thereof  may  appoint  a  duly  qualified 
impartial  physician  to  examine  the  injured  employ^ 
and  to  report.  The  fee  for  this  service  shall  be  five 
dollars  and  traveling  expenses,  but  the  board  may 
allow  additional  reasonable  amounts  in  extraordinary 
cases." 

NEVADA 

(L.  1911,  0.  183) 

"§7.  Any  workman  entitled  to  receive  weekly 
payments  under  this  Act  is  required,  if  requested  by 


392     Bradbury's  workmen's  compensation  law 

New  Jersey 

the  employer,  to  submit  himself  for  examination 
by  a  duly  qualified  medical  practitioner  or  surgeon 
provided  and  paid  for  by  the  employer,  at  a  time  and 
place  reasonably  convenient  for  the  workman,  within 
three  weeks  after  the  injury,  and  thereafter  at  inter- 
vals not  oftener  than  once  in  six  weeks.  A  copy  of 
the  report  of  the  examining  physician  shall  be  fur- 
nished to  the  workman.  *  *  *"  For  remainder 
of  this  section  see  Chapter  XXIV,  post,  page  426. 
The  subsequent  portions  of  the  section  apply  only 
to  settlements  of  disputes. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"§7.  Any  workman  entitled  to  receive  weekly 
payments  under  this  Act  is  required,  if  requested 
by  the  employer,  to  submit  himself  for  examination 
by  a  duly  qualified  medical  practitioner  or  surgeon 
provided  and  paid  for  by  the  employer,  at  a  time  and 
place  reasonably  convenient  for  the  workman,  within 
two  weeks  after  the  injury,  and  thereafter  at  inter- 
vals not  oftener  than  once  in  a  week.  If  the  workman 
refuses  to  submit  to  such  examination,  or  obstructs 
the  same,  his  right  to  weekly  payments  shall  be  sus- 
pended until  such  examination  has  taken  place, 
and  no  compensation  shall  be  payable  during  or  for 
account  of  such  period." 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§2-17.  Examination  of  employ^  as  to  physical 
condition.  After  an  injury,  the  employ^,  if  so  re- 
quested by  his  employer,  must  submit  himself  for 
examination    at    some    reasonable    time   and    place 


I 


EXAMINATIONS   BY   PHYSICIANS  393 


Rhode  Island 


I 


within  the  State,  and  as  often  as  may  be  reasonably 
requested,  to  a  physician  or  physicians  authorized 
to  practice  under  the  laws  of  this  State.  If  the  em- 
ploy6  requests,  he  shall  be  entitled  to  have  a  physician 
or  physicians  of  his  own  selection  present  to  par- 
ticipate in  such  examination.  The  refusal  of  the 
employe  to  submit  to  such  examination  shall  deprive 
him  of  the  right  to  compensation  during  the  con- 
tinuance of  such  refusal.  When  a  right  to  compen- 
sation is  thus  suspended  no  compensation  shall  be 
payable  in  respect  of  the  period  of  suspension." 

OHIO 

(L.  1911,  c.  000) 

There  is  no  specific  provision  on  this  subject  in  the 
Ohio  Statute,  but  doubtless  the  State  Liability  Board 
of  Awards  has  power  to  make  regulations  concerning 
it.    See  Chapter  XXIV,  post,  page  432. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §21.  Examination  of  injured.  The  em- 
ploy6  shall,  after  an  injury,  at  reasonable  times  dur- 
ing the  continuance  of  his  disability,  if  so  requested 
by  his  employer,  submit  himself  to  an  examination 
by  a  physician  or  surgeon  authorized  to  practice 
medicine  under  the  laws  of  the  state,  furnished  and 
paid  for  by  the  employer.  The  employe  shall  have 
the  right  to  have  a  physician,  provided  and  paid  for 
by  himself,  present  at  such  examination. 

"Any  justice  of  the  superior  court  may,  at  any 
time  after  an  injury,  on  the  petition  of  the  employer 
or  employ^,  appoint  a  competent  and  impartial  phy- 


394     Bradbury's  workmen's  compensation  law 

Washington 

sician  or  surgeon  to  act  as  a  medical  examiner,  and  the 
reasonable  fees  of  such  medical  examiner  as  fixed  by 
the  justice  appointing  him  shall  be  paid  by  the  party 
moving  for  such  appointment. 

"Such  medical  examiner  being  first  duly  sworn  to 
the  faithful  performance  of  his  duties  before  the  jus- 
tice appointing  him  or  clerk  of  the  court  shall  there- 
upon, and  as  often  as  necessary,  examine  such  injured 
employ^  in  order  to  determine  the  nature,  extent,  and 
probable  duration  of  the  injury.  Such  medical  ex- 
aminer shall  file  a  report  of  every  examination  made 
of  such  employe  in  the  office  of  the  clerk  of  the  su- 
perior court  having  jurisdiction  of  the  matter  as 
provided  in  section  16  of  Article  III  of  this  act,  and 
such  report  shall  be  produced  in  evidence  in  any  hear- 
ing or  proceeding  to  determine  the  amount  of  com- 
pensation due  such  employ^  under  the  provisions  of 
this  act.  If  such  employe  refuses  to  submit  himself 
for  any  examination  provided  for  in  this  act,  or  in  any 
way  obstructs  any  such  examination,  his  rights  to 
compensation  shall  be  suspended  and  his  compensa- 
tion during  such  period  of  suspension  may  be  for- 
feited." 

WASHINGTON 

(L.  1911,  c.  74) 

"§  13.  Medical  Examination.  Any  workman  en- 
titled to  receive  compensation  under  this  Act  is  re- 
quired, if  requested  by  the  department,  to  submit 
himself  for  medical  examination  at  a  time  and  from 
time  to  time  at  a  place  reasonably  convenient  for  the 
workman  and  as  may  be  provided  by  the  rules  of  the 
department.  If  the  workman  refuses  to  submit  to 
any  such  examination,  or  obstructs  the  same,  his 
rights  to  monthly  payments  shall  be  suspended  un- 


EXAMINATIONS   BY   PHYSICIANS  395 

Wisconsin 

til  such  examination  has  taken  place,  and  no  com- 
pensation shall  be  payable  during  or  for  account 
of  such  period." 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-12.  Wherever  in  case  of  injury  the  right 
to  compensation  under  this  Act  would  exist  in  favor 
of  any  employ^,  he  shall,  upon  the  written  request 
of  his  employer,  submit  from  time  to  time  to  examina- 
tion by  a  regular  practicing  physician,  who  shall  be 
provided  and  paid  for  by  the  employer,  and  shall 
likewise  submit  to  examination  from  time  to  time 
by  any  regular  physician  selected  by  said  industrial 
accident  board,  or  a  member  or  examiner  thereof. 
The  employ^  shall  be  entitled  to  have  a  physician, 
provided  and  paid  for  by  himself,  present  at  any  such 
examination.  So  long  as  the  employ^,  after  such 
written  request  of  the  employer,  shall  refuse  to  sub- 
mit to  such  examination,  or  shall  in  any  way  obstruct 
the  same,  his  right  to  begin  or  maintain  any  proceed- 
ing for  the  collection  of  compensation  shall  be  sus- 
pended; and  if  he  shall  refuse  to  submit  to  such  ex- 
amination after  direction  by  the  board,  or  any  member 
or  examiner  thereof,  or  shall  in  any  way  obstruct  the 
same,  his  right  to  the  weekly  indemnity  which  shall 
accrue  and  become  payable  during  the  period  of  such 
refusal  or  obstruction,  shall  be  barred.  Any  physician 
who  shall  make  or  be  present  at  any  such  examination 
may  be  required  to  testify  as  to  results  thereof." 


CHAPTER  XXIV 

BY  WHOM  LAW  ADMINISTERED  AND  HOW  AWARDS 
DETERMINED;  FORMS  *0F  PETITIONS,.  ANSWERS 
AND  AWARDS 

Page 

1.  Liberal  rules  as  to  procedure 397 

2.  Right  of  workman  to  take  out  letters  of  administration  on 

estate  of  deceased  employer 397 

3.  Specifying  amount  when  making  claim  for  compensation . .  397 

4.  Necessity  of  appointment  of  guardian  ad  litem  when  in- 

terests of  incompetent  involved 397 

5.  Agreement  to  pay  compensation  is  not  a  consent  to  submit 

to  arbitration 398 

6.  Agreement  for  compensation  bar  to  arbitration  proceedings  399 

7.  Effect  of  agreement  to  pay  compensation   "during  in- 

capacity"   399 

8.  Amending  pleadings  by  arbitration 399 

9.  Burden  of  proving  the  injury  was  caused  by  accident  is  on 

the  workman 399 

10.  Inferences  in  the  absence  of  direct  proof 400 

11.  Burden  of  proof  as  to  serious  and  willful  misconduct 403 

12.  Evidence 403 

13.  Sufficiency  of  finding  of  incapacity 404 

14.  Finding  on  question  of  fact  as  to  which  there  is  any  evidence 

to  support 404 

15.  Suspensory  award 406 

16.  Award  to  terminate  at  specified  date  in  future 407 

17.  Admission  in  answer  that  compensation  has  been  paid 

amounts  to  admission  of  claim  made 407 

18.  Apportioning  compensation  among  dependents;  procedure  407 

19.  Enforcing  payment  of  award;  body  execution 407 

20.  New  trial;  arbitrator  cannot  grant 408 

396 


PROCEDURE    IN    ADMINISTERING    LAW  397 

Appointment  of  guardian  of  incompetent 

Page  Page 

California 408     New  Hampshire 427 

Illinois 411     New  Jersey 428 

Kansas 412     Ohio 432 

Massachusetts 416     Rhode  Island 438 

Michigan 422     Washington 442 

Nevada 426     Wisconsin 446 

1.  Liberal  rules  as  to  procedure. 

Documents  in  arbitration  proceedings  under  the  Act 
should  not  be  treated  with  the  nicety  and  strictness  of 
pleadings  in  judicial  proceedings  in  the  higher  court. 
Lowe  V.  M.  Myers  &  Sons  (1906),  2  K.  B.  265;  8  W.  C. 
C.  22. 

2.  Right  of  workman  to  take  out  letters  of  adminis- 

tration on  estate  of  deceased  employer. 

Where  an  employer  against  whom  compensation  had 
been  awarded  died,  and  his  next  of  kin  refused  to  take 
out  letters  of  administration,  it  was  held  that  the  work- 
man who  was  entitled  to  compensation  could  apply  to 
have  such  letters  taken  out.  Matter  of  William  Byrne, 
Deceased  (1910),  44  Irish  L.  T.  98;  3  B.  W.  C.  C.  591. 

3.  Specifying  amotmt  when  making  claim  for  com- 

pensation. 
It  is  unnecessary,  in  making  a  claim  under  the 
Workmen's  Compensation  Act,  to  specify  the  amount 
claimed.  Thompson  v.  R.  W.  Gould  &  Co.  (1910),  A.  C. 
409;  103  L.  T.  81;  3  B.  W.  C.  C.  392.  The  last- 
mentioned  case  was  decided  by  the  House  of  Lords. 

4.  Necessity  of  appointment  of  guardian  ad  litem 

when  interests  of  incompetent  involved. 
Proceedings   under   the   Workmen's   Compensation 


398     Bradbury's  workmen's  compensation  i  ^w 

Compensation  agreement  not  arbitration  submission 

Act  in  respect  of  the  death  of  a  workman,  were  brought 
on  behalf  of  A,  a  daughter,  who  had  been  residing 
with  him  and  acting  as  his  housekeeper,  and  B,  his 
wife,  who  was  then,  and  had  been  for  many  years,  an 
inmate  of  the  district  lunatic  asylum.  The  matter  was 
settled  as  between  the  employer  and  A  by  the  employer 
agreeing  to  pay  £100,  which  was  lodged  in  court.  No 
guardian  ad  litem  to  B  having  been  appointed,  an 
application  was  made  by  the  resident  medical  superin- 
tendent of  the  asylum  of  which  B  was  an  inmate,  to 
have  the  said  sum  of  £100  apportioned  between  A  and 
B,  on  the  bases  of  both  of  them  being  dependents  of 
the  deceased.  It  was  held  on  appeal  that  as  no  guards 
ian  ad  litem  had  been  appointed  for  the  lunatic  neither 
the  respondent  nor  the  lunatic  were  before  the  court 
and  there  was  no  jurisdiction  to  make  any  order. 
Kerr  and  another  v.  Stewart  (1909),  43  Irish  L.  T.  119; 
2  B.  W.  C.  C.  454. 

6.  Agreement  to  pay  compensation  is  not  a  consent 
to  submit  to  arbitration. 

On  an  application  to  register  a  memorandum  of 
agreement  to  pay  compensation  the  judge  has  no 
power  to  alter  the  amount  and  treat  that  agreement  as 
a  submission  by  the  employer  to  pay  any  sum  the 
judge  thinks  reasonable.  Hall  v.  Furness,  Withy  & 
Co.  (1909),  3  B.  W.  C.  C.  72.  When  a  memorandum  of 
agreement  has  been  presented  to  be  recorded,  the 
judge  has  no  power  to  do  more  than  declare  whether  or 
not  the  memorandum  is  one  which  ought  to  be  recorded 
and  he  has  no  power  to  make  any  substantive  order 
dealing  with  the  whole  matter,  or  to  treat  the  agree- 
ment as  a  submission  by  the  employer  to  pay  any  sum 


PROCEDURE    IN    ADMINISTERING   LAW  399 

Burden  of  proof 

which  the  judge  under  the  circumstances  may  think 
just  and  proper.  Mortimer  v.  Secretan  (1909),  100 
L.  T.  721;2B.  W.  C.  C.446. 

6.  Agreement  for   compensation   bar   to  arbitration 

proceedings. 
An  implied  agreement  for  compensation  is  a  bar  to 
proceedings    in    arbitration.      Bushy    v.    Richardson 
(1901),  3  W.  C.  C.  54. 

7.  Effect  of  agreement  to  pay  compensation  "  during 

incapacity." 
Where  an  agreement  has  been  entered  into,  whereby 
the  employers  agree  to  pay  compensation  "during  the 
time  of  the  incapacity  of  the  workman,"  and  the  em- 
ployers thereafter  cease  payments,  the  employers  may 
show  in  any  proceeding  by  the  workman  to  recover 
compensation  for  the  period  subsequent  to  the  time 
of  suspension  of  payments,  that  the  incapacity  ceased 
when  the  payments  were  discontinued.  Ibrahim  Said 
V.  J.  H,  Welsford  &  Co.  (1910),  3  B.  W.  C.  C.  233. 

8.  Amending  pleadings  by  arbitrator. 

Under  the  British  Columbia  Compensation  Act  of 
1902  an  arbitrator  has  the  same  power  to  amend  plead- 
ings in  the  proceeding  as  a  judge  has  in  a  civil  action. 
Moore  v.  Crow's  Nest  Pass  Coal  Company  (1910),  15 
Br.  C.  R.  391;  4  B.  W.  C.  C.  451. 

9.  Burden  of  proving  the  injury  was  caused  by  acci- 

dent is  on  the  workman. 
A  collier  died  of  apoplexy  during  work  hours  in  a 
mine.    The  majority  of  the  doctors  said  that  his  arteries 


400     Bradbury's  workmen's  compensation  law 

Inferences  in  the  absence  of  direct  proof 


were  in  a  very  diseased  condition,  and  that  apoplexy 
might  have  come  upon  him  when  asleep  in  bed,  or 
when  walking  about,  or  when  over-exerting  himself. 
There  was  no  evidence  that  the  apoplexy  came  upon 
him  when  he  was  incurring  a  strain.  It  was  held  that 
as  the  evidence  as  to  the  cause  of  death  was  equally 
consistent  with  an  accident,  and  with  no  accident,  the 
applicants  for  compensation  had  not  discharged  the 
onus  of  proving  it,  which  was  upon  them.  Barnabas 
V.  Bersham  Colliery  Co.  (1910),  102  L.  T.  R.  621 ;  3  B.  W. 
C.  C.  216.  Where  a  bus  driver  fell  from  the  bus  and 
there  was  conflicting  medical  evidence  as  to  the  cause 
of  death,  it  was  held  that  the  burden  was  on  the  de- 
pendent to  prove  that  death  was  caused  by  accident, 
and  as  this  burden  had  not  been  sustained  compensa- 
tion was  refused.  Thackway  v.  Connelly  and  Sons 
(1909),  3  B.  W.  C.  C.  37.  In  the  last-mentioned  case 
the  court  laid  down  the  rule,  citing  several  other  de- 
cisions, that  it  is  incumbent  upon  the  plaintiff  to 
make  out  that  the  accident  in  respect  of  which  com- 
pensation is  claimed,  arose  out  of  and  in  the  course  of 
the  injured  man's  employment,  not  upon  the  employer 
to  prove  the  contrary. 

10.  Inferences  in  the  absence  of  direct  proof. 

Even  though  there  is  no  direct  evidence  that  an 
injury  to  a  workman  arose  out  of  and  in  the  course  of 
his  employment  an  inference  to  this  effect  may  be 
drawn  where  the  known  facts  are  more  consistent  with 
the  theory  that  the  injury  did  so  arise  than  with  the 
theory  that  the  accident  occurred  in  some  other  manner. 
Mitchell  V.  Glamorgan  Coal  Co.  (1907),  23  T.  L.  R.  588; 
9  W.  C.  C.  16.    In  the  case  last  cited  the  workman,  a 


PROCEDURE    IN   ADMINISTERING   LAW  401 

Inference  in  the  absence  of  direct  proof 

miner,  returned  home  in  his  working  clothes,  with 
one  finger  crushed.  The  appUcant  for  compensation 
dressed  the  wound  and  the  workman  returned  to  work 
for  a  few  days  when  blood  poisoning  set  in  and  he  died. 
The  court  held  that  while  it  was  possible  that  the 
workman  was  injured  on  his  way  home  the  court 
would  be  justified  on  the  facts  stated  to  draw  the  in- 
ference that  the  workman  was  injured  in  the  course  of 
his  employment. 

A  man  of  seventy  was  employed  at  an  undertaker's, 
part  of  his  duty  being  to  lift  coffins.  He  went  to  work 
one  day  apparently  well,  and  on  his  return  home  com- 
plained to  his  wife  of  having  been  hurt  that  day; 
there  were  marks  upon  his  side  and  chest,  and  his  leg 
was  swollen.  He  died  about  a  week  afterward,  from 
pneumonia  supervening  on  pleurisy  caused  by  injury. 
There  was  no  direct  evidence  showing  that  an  accident 
had  been  sustained  by  the  deceased  in  the  course  of  his 
employment.  It  was  held  that  there  was  evidence  to 
support  the  inference  that  the  man  died  from  accident. 
Wright  V.  Kerrigan  (1911),  45  Irish  L.  T.  82;  4  B.  W. 
C.  C.  432.  In  this  case  one  of  the  judges  said  as  to 
the  admissibility  of  statements  made  by  a  deceased  to 
his  doctor,  with  regard  to  his  bodily  injuries  and  their 
immediate  cause:  ''Such  statements  are  invariably  ad- 
mitted on  various  grounds,  the  chief  of  which  is  that 
there  is  no  other  possible  evidence.  Those  statements 
made,  not  necessarily  to  a  doctor,  but  to  any  person,  as 
to  bodily  injuries,  are  admissible." 

The  chief  officer  of  a  steam  vessel  fell  overboard  be- 
tween 7  and  8  a.  m.  on  a  fine  morning,  at  a  time  when 
he  was  on  duty  and  in  charge  of  the  vessel  on  deck.  No 
one  saw  him  fall  overboard.  Before  7  a.  m.  and  during 
26 


402    Bradbury's  workmen's  compensation  law 

Inferences  in  the  absence  of  direct  proof 

his  watch,  which  commenced  at  4  a.  m.,  he  had  gone 
below  complaining  of  a  headache  and  giddiness,  and 
had  taken  a  dose  of  castor  oil,  but  had  returned  to  his 
duty  on  deck.  The  County  Court  judge,  in  the  ab- 
sence of  direct  evidence  as  to  how  the  accident  hap- 
pened, inferred  that  it  arose  out  of,  as  well  as  in  the 
course  of  the  employment.  It  was  held  that  the  judge 
was  justified  by  the  balance  of  the  probability  in  draw- 
ing this  inference.  Owners  of  Steamship  "Swansea 
Vale"  V.  Rice  (1911),  104  L.  T.  658;  4  B.  W.  C.  C.  298. 

The  fact  of  a  seaman's  disappearance  from  his  vessel, 
and  his  unexplained  drowning,  does  not  raise  a  prima 
facie  inference  that  he  met  with  an  accident  arising  out 
of  as  well  as  in  the  course  of  his  employment.  A  sailor 
having  gone  on  deck  from  his  cabin  in  the  course  of  his 
employment  on  a  hot  night  for  the  purpose  of  getting 
some  fresh  air,  disappeared,  and  the  next  day  his  body 
was  found  in  the  tidal  basin  close  to  the  ship.  It  was 
held  that  the  applicant  had  not  complied  with  the  onus 
resting  upon  her  of  proving  that  the  accident  arose  out 
of  as  well  as  in  the  course  of  the  employment,  and  she 
was  not  entitled  to  compensation.  Marshall  v.  Owners 
of  Ship  ''Wild  Rose"  (1909),  100  L.  T.  739;  2  B.  W.  C. 
C.  76. 

A  workman  received  an  injury  in  the  course  of  his 
employment,  which  necessitated  the  amputation  of 
one  of  his  fingers.  He  was  put  under  anaesthetics  and 
the  finger  was  amputated.  As  he  was  recovering  from 
the  effects  of  the  anaesthetics  the  surgeons  decided  to 
remove  a  bad  tooth  of  which  the  workman  had  com- 
plained; further  anaesthetics  were  administered,  and 
an  unsuccessful  attempt  was  made  to  remove  the 
tooth.    The  workman  shortly  afterwards  died.    It  was 


PROCEDURE    IN   ADMINISTERING    LAW  403 

Evidence 

held  that  it  was  as  probable  that  death  resulted  from 
a  spasm  induced  by  an  attempt  to  swallow  oozing 
blood  in  his  mouth,  as  that  it  resulted  from  the  an- 
aesthetic for  the  first  operation,  and  consequently  that 
the  widow  had  not  discharged  the  onus  which  rested 
upon  her  of  proving  that  the  workman's  death  resulted 
from  his  injury  by  the  accident.  Charles  v.  Walker 
(1909),  25  T.  L.  R.  609;  2  B.  W.  C.  C.  5. 

A  sailor  on  board  ship  in  a  harbor  went  on  deck  late 
at  night  to  get  some  fresh  air.  He  was  found  dead  in 
the  water  in  the  morning.  It  was  held  that  the  mere 
fact  of  a  seaman  disappearing  from  his  ship  and  being 
found  drowned  alongside  is  not  sufficient  to  discharge 
the  onus  of  proving  that  the  accident  arose  out  of  the 
employment.  (House  of  Lords),  Marshall  v.  Owners  of 
Ship  ''Wild  Rose"  (1910),  3  B.  W.  C.  C.  514. 

11.  Burden  of  proof  as  to  serious  and  willful  miscon- 
duct. 

The  burden  of  proving  that  the  workman  has  been 
guilty  of  serious  and  willful  misconduct  is  on  the  em- 
ployer who  sets  it  up  as  a  reason  for  refusing  compensa- 
tion. Johnson  v.  Marshall,  Sons  &  Co.  (1906),  94  L.  T. 
828;  8  W.  C.  C.  10. 

12.  Evidence. 

The  statement  made  by  an  employ^  in  the  absence 
of  his  employer,  by  a  deceased  man,  as  to  his  bodily  or 
mental  feelings,  are  admissible  in  evidence,  but  those 
made  as  to  the  cause  of  his  illness  are  not  admissible  in 
evidence  and  where  there  is  no  other  evidence  of  an 
accident  arising  out  of  and  in  the  course  of  the  em- 
ployment than  statements  made  by  a  deceased  em- 


404    Bradbury's  workmen's  compensation  law 

Findings  of  fact;  evidence  to  support 

ploye  in  the  absence  of  his  employer,  an  award  cannot 
be  sustained.  Gilbey  v.  The  Great  Western  Railway  Co. 
(1910),  102  L.  T.  202;  3  B.  W.  C.  C.  135.  A  statement 
made  by  a  deceased  workman  to  a  fellow  workman  as  to 
the  cause  of  the  injury  he  received,  is  not  admissible 
in  evidence.  Penn  v.  Spiers  &  Pond  (1908),  1  B.  W. 
C.  C.  401.  But  see  Wright  v.  Kerrigan  (1911),  45  Irish 
L.  T.  82;  4  B.  W.  C.  C.  432,  referred  to  ante,  page 
401. 

13.  Sufficiency  of  finding  of  incapacity. 

A  finding  that  a  workman  was  incapacitated  "for 
work  at  his  trade  of  stone  breaking  by  the  loss  of  an 
eye"  was  held  to  be  in  effect  a  finding  that  he  was 
incapacitated  ''for  work."  Boyd  v.  Doharty  (1908),  46 
Scotch  L.  R.  71;  2  B.  W.  C.  C.  257. 

14.  Finding  on  question  of  fact  as  to  which  there  is 
any  evidence  to  support. 

A  workman  while  engaged  in  carrying  joists  for  a 
house,  fainted,  and  subsequently  died.  Medical  wit- 
nesses for  the  workman  gave  it  as  their  opinion  that 
death  was  due  to  rupture  of  the  heart  caused  by  the 
work,  while  medical  witnesses  for  the  employers  gave  it 
as  their  opinion  that  death  was  due  to  heart  disease. 
The  arbitrator,  in  consequence  of  this  evidence,  sub- 
mitted the  matter  to  a  medical  referee  to  report.  The 
medical  referee  reported  that  the  workman  died  from 
disease  of  the  heart.  The  arbitrator  found  that  the 
workman  died  from  a  rupture  of  the  heart,  caused  by 
the  strain  of  the  work  and  awarded  compensation.  It 
was  held  that  the  arbitrator  was  not  bound  to  accept 
the  medical  referee's  report  as  conclusive,  and  that, 


PROCEDURE    IN   ADMINISTERING   LAW  405 

Findings  of  fact;  evidence  to  support 

as  there  was  some  evidence  to  justify  the  award,  it 
must  stand.  Scotstoun  Estate  Co.  v.  Jackson  (1911), 
48  Scotch  L.  R.  440;  4  B.  W.  C.  C.  381.  In  the  last- 
mentioned  case  the  court  said:  "There  is  nothing 
in  the  statute  that  in  any  way  absolves  the  arbitrator 
from  his  duty  as  arbitrator.  It  is  only  a  report  that  he 
gets  from  the  medical  referee,  and  therefore  I  think  it 
would  be  impossible  to  affirm  that  the  arbitrator  was 
bound  to  accept  the  medical  referee's  report  or  opinion, 
that  is  to  say,  to  accept  it  as  conclusive  of  the  whole 
matter.  He  gets  a  report,  and  must  weigh  that  report 
just  as  he  weighs  the  rest  of  the  evidence." 

A  collier  was  injured  in  1903,  and  after  jfive  months' 
absence  returned  to  work;  some  of  the  work  he  then 
did  was  heavier  than  his  work  before  the  accident.  He 
was  dismissed  in  1909,  and  claimed  compensation  on 
the  ground  that  the  consequences  of  his  injury  pre- 
vented him  from  obtaining  work.  The  medical  evidence 
was  conflicting,  and  the  case  was  referred  to  a  medical 
referee,  who  reported  that  the  man  was  fit  for  full  work, 
but  more  Uable  to  strains  than  before  the  accident. 
On  this  report  the  County  Court  judge  made  an  award 
of  one  penny  a  week.  It  was  held  on  appeal  that  the 
matter  was  a  pure  question  of  fact  and  that  there  was 
evidence  to  justify  the  County  Court  judge's  award. 
Wells  V.  Cardiff  Steam  Coal  Collieries  Co.  (1909),  3  B. 
W.  C.  C.  104. 

A  workman  while  engaged  in  lajdng  drain  pipes,  was 
struck  on  the  back  by  a  stone  and  was  injured.  A  day 
or  two  afterwards  he  was  seen  by  a  doctor,  who  diag- 
nosed pneumonia,  and  sent  him  to  a  hospital,  where 
he  remained  for  three  days,  when  he  insisted  on  being 
taken  home.    He  was  accordingly  assisted  home,  a  dis- 


406    bradbuey's  workmen's  compensation  law 

Suspensory  award 

tance  of  some  ten  minutes'  walk,  by  some  neighbors. 
This  was  done  in  spite  of  warning  by  the  doctor  in 
attendance  at  the  hospital  that  such  a  course  was 
dangerous  to  life.  He  died  two  days  afterward.  Upon 
an  application  by  his  widow  for  compensation  the  ar- 
bitrator found  that  death  resulted  from  the  accident. 
It  was  held  that  there  was  evidence  to  support  the 
finding.  Dunnigan  v.  Cavan  &  Lind  (1911),  48  Scotch 
L.  R.  459;  4  B.  W.  C.  C.  386. 

An  injured  workman  was  paid  compensation  for 
sixty-one  weeks  by  his  employers.  Subsequently  the 
employers  offered  the  workman  light  work,  which  he 
refused,  without  attempting  to  do  it.  The  County 
Court  judge  held  that  the  workman  had  acted  unrea- 
sonably in  refusing  to  go  and  see  what  the  work  offered 
was,  and  that,  if  he  had  accepted  the  offer  and  returned 
to  work,  by  the  date  of  the  arbitration  he  would  have 
been  under  no  disability.  He  therefore  stopped  com- 
pensation, but  made  a  declaration  of  liability.  It  was 
held  on  appeal  that  the  decision  was  on  a  question  of 
fact,  and  that  there  was  evidence  to  support  it.  Fur- 
ness,  Withy  &  Co.  v.  Bennett  (1910),  3  B.  W.  C.  C.  195. 

Where  the  County  Court  judge  holds  that  the  work- 
man is  shamming,  and  there  is  evidence  to  support_the 
decision,  this  is  a  question  of  fact  with  which  the  Court 
of  Appeal  will  not  interfere.  Roberts  v.  Benham  (1910), 
3  B.  W.  C.  C.  430. 

15.  Suspensory  award. 

A  suspensory  award  should  be  made  where,  although 
the  man  can  work,  yet  the  bad  effects  of  the  accident 
still  remain.  So  held,  where  a  seaman  was  ruptured  and 
a  medical  referee  reported  that  he  was  fit  for  his  full 


PROCEDURE   IN   ADMINISTERING   LAW  407 

Enforcing  payment  of  award;  body  execution 

work  but  must  wear  a  truss.    Griga  v.  Owners  of  Ship 
"Harelda''  (1910),  26  T.  L.  R.  272;  3  B.  W.  C.  C.  116. 

16.  Award  to  terminate  at  specified  date  in  future. 

The  judge  has  no  power  to  make  an  award  which 
shall  continue  for  a  certain  length  of  time  and  then 
terminate  on  a  date  mentioned  in  the  future.  Baker  v. 
Jewell  (1910),  3  B.  W.  C.  C.  503. 

17.  Admission  in  answer  that  compensation  has  been 
paid  amounts  to  admission  of  claim  made. 

A  statement  in  an  answer  that  compensation  has 
been  paid  is  an  admission  of  fact  and  evidence  that  a 
claim  has  been  made.  Lowe  v.  Myers  &  Son  ^1906), 
95  L.  T.  35;  8  W.  C.  C.  22. 

18.  Apportioning  compensation   among  dependents; 
procedure. 

Where  an  employer  has  agreed  with  dependents  as  to 
the  amount  of  compensation,  arbitration  under  the 
Act,  naming  the  employer  as  respondent,  is  not  neces- 
sary to  enable  such  amount  to  be  apportioned  among 
the  dependents  of  the  deceased,  but  the  sum  should  be 
brought  in  and  lodged  in  the  County  Court  to  the 
credit  of  the  applicants  and  respondents.  Harland  & 
Wolff  V.  Radcliffe  (1909),  43  Irish  L.  T.  166;  2  B.  W. 
C.  C.  374;  Rhodes  v.  Soothill  Wood  Colliery  Co.  (1908), 
100  L.  T.  15;  2  B.  W.  C.  C.  377. 

19.  Enforcing  payment  of  award;  body  execution. 

A  committal  order  on  a  judgment  summons  can  be 
made  in  order  to  enforce  an  award.  Johnson  v.  Ads- 
head,  2  W.  C.  C.  158.    An  award  for  compensation  may 


408    Bradbury's  workmen's  compensation  law 

California 

be  enforced  by  a  committal  order  under  the  Debtor's 
Act.    Bailey  v.  Plant  (1900),  3  W.  C.  C.  209. 

20.  New  trial;  arbitrator  cannot  grant. 

An  arbitrator  has  no  power  to  grant  a  rehearing  in 
the  nature  of  a  new  trial  of  an  action  after  he  has  made 
his  award,  as  he  sits  as  an  arbitrator  and  not  as  a 
judge.  Mountain  v.  Parr  (1899),  80  L.  T.  342;  1  W. 
C.  C.  110. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§  12.  Any  dispute  or  controversy  concerning 
compensation  under  this  Act,  including  any  in  which 
the  State  may  be  a  party,  shall  be  submitted  to  a 
board  consisting  of  three  members,  which  shall  be 
known  as  the  industrial  accident  board.  Within 
thirty  days  before  this  Act  shall  take  effect,  the 
governor,  by  and  with  the  advice  and  consent  of  the 
senate,  shall  appoint  a  member  who  shall  serve  two 
years,  and  another  who  shall  serve  three  years,  and 
another  who  shall  serve  four  years.  Thereafter  such 
three  members  shall  be  appointed  and  confirmed 
for  terms  of  four  years  each.  Vacancies  shall  be  filled 
in  the  same  manner  for  the  unexpired  term.  Each 
member  of  the  board,  before  entering  upon  the  duties 
of  his  office,  shall  take  the  oath  prescribed  by  the 
constitution.  A  majority  of  the  board  shall  consti- 
tute a  quorum  for  the  exercise  of  any  of  the  powers 
or  authority  conferred  by  this  Act,  and  an  award 
by  a  majority  shall  be  valid.  In  case  of  a  vacancy, 
the  remaining  two  members  of  the  board  shall  ex- 
ercise all  the  powers  and  authority  of  the  board  until 
such  vacancy  is  filled.     Each  member  of  the  board 


PROCEDURE    IN   ADMINISTERING    LAW  409 

California 

shall  receive  an  annual  salary  of  three  thousand  six 
hundred  dollars." 

"§  13.  The  board  shall  organize  by  choosing  one 
of  its  members  as  chairman.  Subject  to  the  provisions 
of  this  Act,  it  may  adopt  its  own  rules  of  procedure 
and  may  change  the  same  from  time  to  time  in  its 
discretion.  The  board,  when  it  shall  deem  it  necessary 
to  expedite  its  business,  may  from  time  to  time 
employ  one  or  more  expert  examiners  for  such  length 
of  time  as  may  be  required.  It  may  also  appoint 
a  secretary  and  such  clerical  help  as  it  may  deem 
necessary.  It  shall  fix  the  compensation  of  all  as- 
sistants so  appointed. " 

"§  14.  The  board  shall  keep  its  office  at  the  city 
of  San  Francisco,  and  shall  be  provided  by  the  secre- 
tary of  state  with  a  suitable  room  or  rooms,  necessary 
office  furniture,  stationery,  and  other  supplies.  The 
members  of  the  board  and  its  assistants,  shall  be  en- 
titled to  receive  from  the  state  their  actual  and  nec- 
essary expenses  while  traveling  on  the  business  of  the 
board,  but  such  expenses  shall  be  sworn  to  by  the 
person  who  incurred  the  same,  and  be  approved  by  the 
chairman  of  the  board,  before  payment  is  made.  All 
salaries  and  expenses  authorized  by  this  Act  shall  be 
audited  and  paid  out  of  the  general  funds  of  the  state 
the  same  as  other  general  state  expenses  are  audited 
and  paid." 

"  §  15.  Upon  the  filing  with  the  board  by  any  party 
in  interest  of  an  application  in  writing  stating  the 
general  nature  of  any  dispute  or  controversy  concern- 
ing compensation  under  this  act,  it  shall  fix  a  time  for 
the  hearing  thereof,  which  shall  not  be  more  than 
forty  days  after  the  filing  of  such  application.  The 
board  shall  cause  notice  of  such  hearing  to  be  given 
to  each  party  interested  by  service  of  such  notice  on 


410    bradbuby's  workmen's  compensation  law 

California 

him  personally  or  by  mailing  a  copy  thereof  to  him  at 
his  last  known  post  office  address  at  least  ten  days 
before  such  hearing.  Such  hearing  may  be  adjourned 
from  time  to  time  in  the  discretion  of  the  board,  and 
hearings  shall  be  held  at  such  places  as  the  board  shall 
designate.  Either  party  shall  have  the  right  to  be 
present  at  any  hearing,  in  person  or  by  attorney  or  any 
other  agent,  and  to  present  such  testimony  as  shall  be 
pertinent  to  the  controversy  before  the  board,  but  the 
board  may,  with  or  without  notice  to  either  party, 
cause  testimony  to  be  taken,  or  inspection  of  the 
premises  where  the  injury  occurred  to  be  had,  or  the 
time  books  and  payroll  of  the  employer  to  be  examined 
by  any  member  of  the  board  or  any  examiner  ap- 
pointed by  it,  and  may  from  time  to  time,  direct  any 
employ^  claiming  compensation  to  be  examined  by  a 
regular  physician;  the  testimony  so  taken  and  the 
results  of  any  such  inspection  or  examination,  to  be 
reported  to  the  board  for  its  consideration  upon  final 
hearing.  The  board,  or  any  member  thereof,  or  any 
examiner  appointed  thereby  shall  have  power  and  au- 
thority to  issue  subpoenas  to  compel  the  attendance  of 
witnesses  or  parties,  and  the  production  of  books, 
papers,  or  records,  and  to  administer  oaths.  Obedi- 
ence to  such  subpoenas  shall  be  enforced  by  the  su- 
perior court  of  any  county,  or  city  and  county. 

"§  16.  After  final  hearing  by  said  board,  it  shall 
make  and  file  (1)  its  findings  upon  all  facts  involved  in 
the  controversy,  and  (2)  its  awards,  which  shall  state 
its  determination  as  to  the  rights  of  the  party. 

"§  17.  Either  party  may  present  a  certified  copy  of 
the  award  to  the  superior  court  for  any  county  or  city 
and  county,  whereupon  said  court  shall,  without 
notice,  render  a  judgment  in  accordance  therewith, 
which  judgment,  until  and  unless  set  aside  as  herein- 


PROCEDURE    IN   ADMINISTERING    LAW  411 

Illinois 

after  provided,  shall  have  the  same  effect  as  though 
duly  rendered  in  an  action  duly  tried  and  determined 
by  said  court,  and  shall,  with  the  like  effect,  be  entered 
and  docketed." 


ILLINOIS 

(L.  1911,  c.  000) 

"§  10.  Any  question  of  law  or  fact  arising  in  regard 
to  the  application  of  this  law  in  determining  the  com- 
pensation payable  hereunder  shall  be  determined 
either  by  agreement  of  the  parties  or  by  arbitration  as 
herein,  provided.  In  case  any  such  question  arises 
which  cannot  be  settled  by  agreement,  the  emploj'6 
and  the  employer  shall  each  select  a  disinterested 
party  and  the  judge  of  the  county  court  or  other 
court  of  competent  jurisdiction,  of  the  county  where 
the  injured  employ^  resided  or  worked  at  the  time 
of  the  injury,  shall  appoint  a  third  disinterested  party, 
such  persons  to  constitute  a  Board  of  Arbitrators 
for  the  purpose  of  hearing  and  determining  all  such 
disputed  questions  of  law  or  fact  arising  in  regard 
to  the  application  of  this  law  in  determining  the  com- 
pensation payable  hereunder;  and  it  shall  be  the  duty 
of  both  employ^  and  employer  to  submit  to  such 
Board  of  Arbitrators  not  later  than  ten  days  after 
the  selection  and  appointment  of  such  arbitrators 
all  facts  or  evidence  which  may  be  in  their  possession 
or  under  their  control,  relating  to  the  questions 
to  be  determined  by  said  arbitrators;  and  said  Board 
of  Arbitrators  shall  hear  all  the  evidence  submitted 
by  both  parties  and  they  shall  have  access  to  any 
books,  papers  or  records  of  either  the  employer  or 
the  employ^  showing  any  facts  which  mav  be  material 
to  the  questions  before  them,  and  they  shall  be  em- 


412    Bradbury's  workmen's  compensation  law 

Kansas 

powered  to  visit  the  place  or  plant  where  the  accident 
occurred,  to  direct  the  injured  employ 6  to  be  examined 
by  a  regular  practicing  physician  or  surgeon,  and  to 
do  all  other  acts  reasonably  necessary  for  a  proper 
investigation  of  all  matters  in  dispute.  A  copy  of 
the  report  of  the  arbitrators  in  each  case  shall  be 
prepared  and  filed  by  them  with  the  State  Bureau 
of  Labor  Statistics,  and  shall  be  binding  upon  both 
the  employer  and  employ^  except  for  fraud  and 
mistake:  Provided,  that  either  party  to  such  ar- 
bitration shall  have  the  right  to  appeal  from  such 
report  or  award  of  the  arbitrators  to  the  Circuit 
Court  or  the  court  that  appointed  the  third  arbitrator 
of  the  county  where  the  injury  occurred  by  filing 
a  petition  in  such  court  within  twenty  days  after  the 
filing  of  the  report  of  the  arbitrators,  and  upon  filing 
a  good  and  sufficient  bond  in  the  discretion  of  the 
court,  and  upon  such  appeal  the  questions  in  dispute 
shall  be  heard  de  novo,  and  either  party  may  have  a 
jury  upon  filing  a  written  demand  therefor  with  his 
petition." 

KANSAS 

(L.  1911,  c.  218) 

"  §  23.  Agreements.  Compensation  due  under  this 
Act  may  be  settled  by  agreement.  Every  such  agree- 
ment, other  than  a  release,  shall  be  in  the  form 
hereinafter  provided." 

"§24.  Arbitrations.  If  compensation  be  not  so 
settled  by  agreement :  (a)  If  any  committee  represent- 
ative of  the  employer  and  the  workman  exists,  or- 
ganized for  the  purpose  of  settling  disputes  under 
this  Act,  the  matter  shall,  unless  either  party  objects 
by  notice  in  writing  delivered  or  sent  by  registered 


PROCEDURE    IN    ADMINISTERING   LAW  413 

Kansas 

mail  to  the  other  party  before  the  committee  meets 
to  consider  the  matter,  be  settled  in  accordance  with 
its  rules  by  such  committee  or  by  an  arbitrator  se- 
lected by  it.  (6)  If  either  party  so  objects,  or  there 
is  no  such  committee,  or  the  committee  or  the  ar- 
bitrator to  whom  it  refers  the  matter  fails  to  settle  it 
within  sixty  days  from  the  date  of  the  claim,  the 
matter  may  be  settled  by  a  single  arbitrator  agreed 
upon  by  the  parties,  or  appointed  by  any  judge  of  a 
court  where  an  action  might  be  maintained.  The 
consent  to  arbitration  shall  be  in  writing  and  signed 
by  the  parties  and  may  limit  the  fees  of  the  arbitrator 
and  the  time  within  which  the  award  must  be  made. 
And  unless  such  consent  and  the  order  of  appoint- 
ment expressly  refers  other  questions,  only  the 
question  of  the  amount  of  compensation  shall  be 
deemed  to  be  in  issue. 

"  §  25.  The  duties  of  arbitrator.  The  arbitrator 
shall  not  be  bound  by  technical  rules  of  procedure 
or  evidence,  but  shall  give  the  parties  reasonable 
opportunity  to  be  heard  and  act  reasonably  and  with- 
out partiality.  He  shall  make  and  file  his  award  with 
the  consent  to  arbitration  attached  in  the  office  of  the 
clerk  of  the  proper  district  court  within  the  time 
limited  in  the  consent,  or  if  no  time  hmit  is  fixed  there- 
in, within  sixty  days  after  his  selection,  and  shall 
give  notice  of  such  filing  to  the  parties  by  mail. 

"§  26.  Arbitrator's  fees.  The  arbitrator's  fees  shall 
be  fixed  by  the  consent  to  arbitration  or  be  agreed 
to  by  the  parties  before  the  arbitration,  and  if  not  so 
fixed  or  agreed  to,  they  shall  not  exceed  $10.00  per 
day,  for  not  to  exceed  ten  days,  and  disbursements 
for  expense.  The  arbitrator  shall  tax  or  apportion 
the  costs  of  such  fees  in  his  discretion  and  shall  add 
the  amount  taxed  or  apportioned  against  the  employer 


414    Bradbury's  workmen's  compensation  Iaw 

Kansas 

to  the  first  payment  made  under  the  award,  and  he 
shall  note  the  amount  of  his  fees  on  the  award  and 
shall  have  a  lien  therefor  on  the  first  payments  due 
under  the  award. 

"§27.  Form  of  agreements  and  award.  Every 
agreement  for  compensation  and  every  award  shall 
be  in  writing,  signed  and  acknowledged  by  the  parties 
or  by  the  arbitrator  or  secretary  of  the  committee 
hereinbefore  referred  to,  and  shall  specify  the  amount 
due  and  unpaid  by  the  employer  to  the  workman 
up  to  the  date  of  the  agreement  or  award,  and  if  any, 
the  amount  of  the  payments  thereafter  to  be  paid 
by  the  employer  to  the  workman  and  the  length  of 
time  such  payments  shall  continue." 

"  §  28.  Filing  agreements,  awards,  etc.  It  shall  be 
the  duty  of  the  employer  to  file  or  cause  to  be  filed 
every  release  of  liability  hereunder,  every  agreement 
for  or  award  of  compensation,  or  modifying  an  agree- 
ment for  or  award  of  compensation,  under  this  Act, 
if  not  filed  by  the  committee  or  arbitrator,  to  which 
he  is  a  party,  or  a  sworn  copy  thereof,  in  the  office 
of  the  district  court  in  the  county  in  which  the  acci- 
dent occurred  within  sixty  days  after  it  is  made, 
otherwise  it  shall  be  void  as  against  the  workman. 
The  said  clerk  shall  accept,  receipt  for,  and  file  any 
such  release,  agreement  or  award,  without  fee,  and 
record  and  index  it  in  the  book  kept  for  that  purpose. 
Nothing  herein  shall  be  construed  to  prevent  the  work- 
man from  filing  such  agreement  or  award." 

"  §  30.  Staying  proceedings  upon  agreement  or  award. 
At  any  time  after  the  filing  of  an  agreement  or  award 
and  before  judgment  has  been  granted  thereon,  the 
employer  may  stay  proceedings  thereon  by  filing  in 
the  office  of  the  clerk  of  the  district  court  wherein 
such   agreements  or   award   is  filed :   (a) ,  A  proper 


PROCEDURE   IN   ADMINISTERING   LAW  415 

Kansas 

certificate  of  a  qualified  insurance  company  that  the 
amount  of  the  compensation  to  the  workman  is  in- 
sured by  it:  (b)  A  proper  bond  undertaking  to  secure 
the  payment  of  the  compensation.  Such  certificate 
or  bond  shall  first  be  approved  by  a  judge  of  the  said 
district  court." 

"  §  35.  Courts.  All  references  hereinbefore  to  a 
district  court  of  the  State  of  Kansas  having  juris- 
diction of  a  civil  action  between  the  parties  shall  be 
construed  as  relating  to  the  then  existing  code  of 
civil  procedure.  Such  court  shall  make  all  rules 
necessary  and  appropriate  to  carry  out  the  provisions 
of  this  Act." 

"  §  36.  Actions.  A  workman's  right  to  compensa- 
tion under  this  Act,  may,  in  default  of  agreement  or 
arbitration,  be  determined  and  enforced  by  action  in 
any  court  of  competent  jurisdiction.  In  every  such 
action  the  right  to  trial  by  jury  shall  be  deemed 
waived  and  the  case  tried  by  the  court  without  a  jury, 
unless  either  party,  with  his  notice  of  trial,  or  when 
the  case  is  placed  upon  the  calendar — demand  a  jury 
trial.  The  judgment  in  the  action,  if  in  favor  of  the 
plaintiff,  shall  be  for  a  lump  sum  equal  to  the  amount 
of  the  payments  then  due  and  prospectively  due  under 
this  Act,  with  interest  on  the  payments  overdue,  or, 
in  the  discretion  of  the  trial  judge,  for  periodical 
payments  as  in  an  award.  Where  death  results  from 
injury,  the  action  shall  be  brought  by  the  dependent 
or  dependents  entitled  to  the  compensation  or  by  the 
legal  representative  of  the  deceased  for  the  benefit 
of  the  dependents  as  herein  defined;  and  in  such 
action  the  judgment  may  provide  for  the  proportion 
of  the  award  to  be  distributed  to  or  between  the  several 
dependents;  otherwise  such  proportions  shall  be  de- 
termined by  the  proper  probate  court.     An  action 


416    Bradbury's  workmen's  compensation  law 

Massachusetts 

to  set  aside  a  release  or  other  discharge  of  Uabihty 
on  the  ground  of  fraud  or  mental  incompetency  may 
be  joined  with  an  action  for  compensation  under  this 
Act.  No  action  or  proceeding  provided  for  in  this 
Act  shall  be  brought  or  maintained  outside  of  the 
State  of  Kansas,  and  notice  thereof  may  be  given  by 
publication  against  nonresidents  of  the  state  in  the 
manner  now  provided  by  article  7  of  chapter  95, 
General  Statutes  of  Kansas  of  1909  so  far  as  the  same 
may  be  applicable,  and  by  personal  service  of  a  true 
copy  of  the  first  publication  within  twenty-one  days 
after  the  date  of  the  said  first  publication  unless  ex- 
cused by  the  court  upon  proper  showing  that  such 
service  cannot  be  made." 


MASSACHUSETTS 
(L.  1911,  0.  751) 

The  Massachusetts  plan  is  peculiar  to  that  Common- 
wealth. It  is  not  state  insurance,  like  that  prevailing 
in  the  State  of  Washington.  On  the  other  hand,  an 
employer  cannot  embrace  the  compensation  principle 
as  to  his  own  employes  and  have  any  individual  control 
over  the  administration  of  the  payments  of  compensa- 
tion under  the  statute.  The  Act  provides  for  the  in- 
corporation of  a  mutual  association  known  as  the  Mas- 
sachusetts Employees'  Insurance  Association.  It  is 
entirely  self  sustaining  both  as  to  administration  ex- 
penses and  the  sums  paid  by  way  of  compensation  to 
injured  workmen.  Its  income  is  derived  from  pre- 
miums, or  assessments,  collected  from  employers.  The 
first  directors  are  appointed  by  the  Governor.  Subse- 
quently they  are  elected  from  among  the  subscribing 
employers.     Any  employer  in  the  Commonwealth  of 


PROCEDURE    IN    ADMINISTERING   LAW  417 

Massachusetts 

Massachusetts  may  become  a  subscriber.  While  the 
Association  is  charged  with  the  obUgation  to  raise 
funds  to  pay  administration  expenses  and  awards  of 
compensation  to  the  injured  workmen  of  its  subscribers, 
it  has  no  direct  voice  in  making  the  payments  to  such 
workmen.  These  awards  are  all  determined  upon  under 
the  virtual  direction  of  the  Industrial  Accident  Board, 
a  state  institution,  the  members  of  which  are  appointed 
by  the  Governor  with  the  advice  and  consent  of  the 
Council.  The  Association  and  an  injured  workman 
cannot  even  agree  upon  the  amount  of  an  award  for 
compensation  without  the  approval  of  the  Industrial 
Accident  Board.  (Part  III,  §  4.)  In  case  of  disagree- 
ment between  the  Association  and  the  workman  three 
arbitrators,  one  of  whom  must  be,  and  all  of  whom  may 
be,  members  of  the  Industrial  Accident  Board,  are 
appointed  to  determine  the  controversy.  From  an 
award  made  by  these  arbitrators  an  appeal  lies  as  in 
cases  of  judgments  of  the  Superior  Court.  "Any 
weekly  payment  under  this  Act  may  be  reviewed  by 
the  Industrial  Accident  Board  at  the  request  of  the 
Association  or  of  the  employe;  and  on  such  review  it 
may  be  ended,  diminished  or  increased,  subject  to  the 
maximum  and  minimum  amounts  above  provided,  if 
the  board  finds  that  the  condition  of  the  employe  war- 
rants such  action."    Part  III,  §  12. 

"PART  III 

"Procedure 

"§  1.  There  shall  be  an  industrial  accident  board 
consisting  of  five  members,  to  be  appointed  by  the 
governor,  by  and  with  the  advice  and  consent  of  the 

27 


418    Bradbury's  workmen  s  compensation  law 

Massachusetts 

council,  one  of  whom  shall  be  designated  by  the 
governor  as  chairman.  The  term  of  office  of  members 
of  this  board  shall  be  five  years,  except  that  when 
first  constituted  one  member  shall  be  appointed 
for  one  year,  one  for  two  years,  one  for  three  years, 
one  for  four  years,  and  one  for  five  years.  Thereafter 
one  member  shall  be  appointed  every  year  for  the  full 
term  of  five  years.    (As  amended  by  L.  1912,  c.  571.) 

"  §  2.  The  salaries  and  expenses  of  the  board  shall 
be  paid  by  the  commonwealth.  The  salary  of  the 
chairman  shall  be  five  thousand  dollars  a  year,  and 
the  salary  of  the  other  members  shall  be  forty-five 
hundred  dollars  a  year  each.  The  board  may  appoint 
a  secretary  at  a  salary  of  not  more  than  three  thou- 
sand dollars  a  year,  and  may  remove  him.  It  shall 
also  be  allowed  an  annual  sum,  not  exceeding  ten 
thousand  dollars,  for  clerical  service,  and  traveling 
and  other  necessary  expenses.  The  board  shall  be 
provided  with  an  office  in  the  state  house  or  in  some 
other  suitable  building  in  the  city  of  Boston,  in  which 
its  records  shall  be  kept.  (As  amended  by  L.  1912, 
c.  571.) 

"  §  3.  The  board  may  make  rules  not  inconsistent 
with  this  Act  for  carrying  out  the  provisions  of  the 
Act.  Process  and  procedure  under  this  Act  shall  be 
as  summary  as  reasonably  may  be.  The  board  or 
any  member  thereof  shall  have  the  power  to  subpoena 
witnesses,  administer  oaths  and  to  examine  such  parts 
of  the  books  and  records  of  the  parties  to  a  proceed- 
ing as  relate  to  questions  in  dispute.  The  fees  for  at- 
tending as  a  witness  before  the  industrial  accident 
board  shall  be  one  dollar  and  fifty  cents  a  day;  for 
attending  before  an  arbitration  committee  fifty  cents 
a  day;  in  both  cases  five  cents  a  mile  for  travel  out 
and  home. 


PROCEDURE   IN   ADMINISTERING   LAW  419 

Massachusetts 

"The  superior  court  shall  have  power  to  enforce  by 
proper  proceedings  the  provisions  of  this  section  re- 
lating to  the  attendance  and  testimony  of  witnesses 
and  the  examination  of  books  and  records, — so  as  to 
read  as  follows :  Section  3.  The  board  may  make  rules 
not  inconsistent  with  this  act  for  carrying  out  the 
provisions  of  the  act.  Process  and  procedure  under 
this  act  shall  be  as  summary  as  reasonably  may  be. 
The  board  or  any  member  thereof  shall  have  the 
power  to  subpoena  witnesses,  administer  oaths  and 
to  examine  such  parts  of  the  books  and  records  of  the 
parties  to  a  proceeding  as  relate  to  questions  in  dis- 
pute. The  fees  for  attending  as  a  witness  before  the 
industrial  accident  board  shall  be  one  dollar  and 
fifty  cents  a  day,  for  attending  before  an  arbitration 
committee  fifty  cents  a  day;  in  both  cases  five  cents 
a  mile  for  travel  out  and  home. 

"The  superior  court  shall  have  power  to  enforce 
by  proper  proceedings  the  provisions  of  this  section 
relating  to  the  attendance  and  testimony  of  wit- 
nesses and  the  examination  of  books  and  records." 
(As  amended  by  L.  1912,  c.  571.) 

"§4.  If  the  association  and  the  injured  employe 
reach  an  agreement  in  regard  to  compensation  under 
this  Act,  a  memorandum  of  the  agreement  shall  be 
filed  with  the  industrial  accident  board  and,  if  ap- 
proved by  it,  thereupon  the  memorandum  shall  for 
all  purposes  be  enforceable  under  the  provisions  of 
Part  III,  section  eleven.  Such  agreements  shall  be 
approved  by  said  board  only  when  the  terms  conform 
to  the  provisions  of  this  Act.  (As  amended  by  L. 
1912,  c.  571.) 

"§5.  If  the  association  and  the  injured  employ^ 
fail  to  reach  an  agreement  in  regard  to  compensation 
under  this  Act,  either  party  may  notify  the  industrial 


420    Bradbury's  workmen's  compensation  law 

Massachusetts 

accident  board  who  shall  thereupon  call  for  the 
formation  of  a  committee  of  arbitration.  The  com- 
mittee of  arbitration  shall  consist  of  three  members, 
one  of  whom  shall  be  a  member  of  the  industrial 
accident  board,  and  shall  act  as  chairman.  The  other 
two  members  shall  be  named,  respectively,  by  the 
two  parties.  If  the  subscriber  has  appeared  under 
the  provisions  of  Part  II,  section  three,  the  member 
named  by  the  association  shall  be  subject  to  his  ap- 
proval. If  a  vacancy  occurs  it  shall  be  filled  by  the 
party  whose  representative  is  unable  to  act. 

"The  arbitrators  appointed  by  the  parties  shall  be 
sworn    by    the    chairman    as    follows:    I  do 

solemnly  swear  that  I  will  faithfully  perform  my 
duty  as  arbitrator  and  will  not  be  influenced  in  my 
decision  by  any  feeling  of  friendship  or  partiality 
toward  either  party.  So  help  me  God.  (As  amended 
by  L.  1912,  c.  571.) 

"  §  6.  It  shall  be  the  duty  of  the  industrial  accident 
board,  upon  notification  that  the  parties  have  failed 
to  reach  an  agreement,  to  request  both  parties  to 
appoint  their  respective  representatives  on  the  com- 
mittee of  arbitration.  The  board  shall  designate 
one  of  its  members  to  act  as  chairman,  and,  if  either 
party  does  not  appoint  its  member  on  this  committee 
within  seven  days  after  notification,  as  above  pro- 
vided, or  after  a  vacancy  has  occurred  the  board  or 
any  member  thereof  shall  fill  the  vacancy  and  notify 
the  parties  to  that  effect.  (As  amended  by  L.  1912, 
c.  571.) 

"§7.  The  committee  on  arbitration  shall  make 
such  inquiries  and  investigations  as  it  shall  deem 
necessary.  The  hearings  of  the  committee  shall  be 
held  at  the  city  or  town  where  the  injury  occurred, 
and  the  decision  of  the  committee,  together  with  a 


PROCEDURE    IN   ADMINISTERING   LAW  421 

Massachusetts 

statement  of  the  evidence  submitted  before  it,  its 
findings  of  fact,  rulings  of  law  and  any  other  matters 
pertinent  to  questions  arising  before  it,  shall  be  filed 
with  the  industrial  accident  board.  Unless  a  claim 
for  review  is  filed  by  either  party  within  seven  days, 
the  decision  shall  be  enforceable  under  the  provisions 
of  Part  III,  section  eleven.  (As  amended  by  L.  1912, 
c.  571.) 

"§8.  The  industrial  accident  board  or  any  mem- 
ber thereof  may  appoint  a  duly  qualified  impartial 
physician  to  examine  the  injured  employ^  and  to 
report.  The  fee  for  this  service  shall  be  five  dollars 
and  traveling  expenses,  but  the  board  may  allow  ad- 
ditional reasonable  amounts  in  extraordinary  cases. 

"§  9.  The  arbitrators  named  by  or  for  the  parties 
to  the  dispute  shall  each  receive  five  dollars  as  a  fee 
for  his  services,  but  the  industrial  accident  board  or 
any  member  thereof  may  allow  additional  reasonable 
amounts  in  extraordinary  cases.  The  fees  shall  be 
paid  by  the  association,  which  shall  deduct  an  amount 
equal  to  one-third  of  the  sum  from  any  compensation 
found  due  the  employ^. 

"§  10.  If  a  claim  for  a  review  is  filed,  as  provided 
in  Part  III,  section  seven,  the  board  shall  hear  the 
parties  and  file  its  decision  with  the  records  of  the 
proceedings. 

"§  11.  There  shall  be  a  right  of  appeal  to  the  su- 
preme judicial  court  on  questions  of  law,  and  the  in- 
dustrial accident  board  may  report  questions  of  law 
to  the  supreme  judicial  court  for  its  determination. 

"§  12,  Any  weekly  payment  under  this  Act  may 
be  reviewed  by  the  industrial  accident  board  at  the 
request  of  the  association  or  of  the  employ^;  and  on 
such  review  it  may  be  ended,  diminished  or  increased, 
subject   to   the   maximum   and   minimum   amounts 


422    bkadbury's  workmen's  compensation  law 

Michigan 

above  provided,  if  the  board  finds  that  the  condition 
of  the  employ^  warrants  such  action." 

"§  16.  All  questions  arising  under  this  Act,  if  not 
.  .  settled  by  agreement  by  the  parties  interested  therein, 
shall,  except  as  otherwise  herein  provided,  be  deter- 
mined by  the  industrial  accident  board.  The  de- 
cisions of  the  industrial  accident  board  shall  for  all 
purposes  be  enforceable  as  if  they  were  decrees  of  the 
Superior  Court." 

MICHIGAN 

(L.  1912,  No.  3) 
"PART   III 
"  Procedure 

§  1.  There  is  hereby  created  a  board  which  shall  be 
known  as  the  Industrial  Accident  Board,  consisting 
of  three  members  to  be  appointed  by  the  governor, 
by  and  with  the  consent  of  the  senate,  one  of  whom 
shall  be  designated  by  the  governor  as  chairman. 
Appointments  to  fill  vacancies  may  be  made  during 
recesses  of  the  senate,  but  shall  be  subject  to  con- 
firmation by  the  senate  at  the  next  ensuing  session  of 
the  legislature.  The  term  of  office  of  members  of  this 
board  shall  be  six  years,  except  that  when  first  con- 
stituted one  member  shall  be  appointed  for  two  years, 
one  for  four  years,  and  one  for  six  years.  Thereafter 
one  member  shall  be  appointed  every  second  year  for 
the  full  term  of  six  years.  No  more  than  two  mem- 
bers of  this  board  shall  belong  to  the  same  political 
party. 

"§2.  The  salary  of  each  of  the  members  so  ap- 
pointed by  the  governor  shall  be  three  thousand  five 
hundred  dollars  per  year.  The  board  may  appoint  a 
secretary  at  a  salary  of  not  more  than  two  thousand 


PROCEDUEE   IN   ADMINISTERING   LAW  423 

Michigan 

five  hundred  dollars  a  year,  and  may  remove  him. 
The  board  shall  be  provided  with  an  office  in  the 
capitol,  or  in  some  other  suitable  building  in  the  city 
of  Lansing,  in  which  its  records  shall  be  kept,  and  it 
shall  also  be  provided  with  necessary  office  furniture, 
stationery  and  other  supplies.  It  shall  provide  itself 
with  a  seal  for  the  authentication  of  its  orders,  awards 
and  proceedings,  upon  which  shall  be  inscribed  the 
words  "Industrial  Accident  Board — Michigan — Seal." 
It  shall  employ  such  assistants  and  clerical  help  as  it 
may  deem  necessary  and  fix  the  compensation  of  all 
persons  so  employed:  Provided,  That  the  average 
compensation  paid  to  such  employe  shall  not  exceed 
one  thousand  dollars  per  annum  for  each  person 
employed,  and  all  such  clerical  assistants  shall  be  sub- 
ject to  existing  laws  regulating  the  grading  and  com- 
pensation of  department  clerks.  The  members  of  the 
board  and  its  assistants  shall  be  entitled  to  receive 
from  the  state  their  actual  and  necessary  expenses 
while  traveling  on  the  business  of  the  board;  but  such 
expenses  shall  be  sworn  to  by  the  person  who  incurred 
the  same,  and  be  approved  by  the  chairman  of  the 
board  before  payment  is  made. 

"All  such  salaries  and  expenses  when  audited  and 
allowed  by  the  board  of  state  auditors,  shall  be  paid 
by  the  state  treasurer  out  of  the  general  fund,  upon 
warrant  of  the  auditor  general. 

§  3.  The  board  may  make  rules  not  inconsistent 
with  this  act  for  carrying  out  the  provisions  of  the  act. 
Process  and  procedure  under  this  act  shall  be  as 
summary  as  reasonably  may  be.  The  board  or  any 
member  thereof  shall  have  the  power  to  administer 
oaths,  subpoena  witnesses  and  to  examine  such  parts 
of  the  books  and  records  of  the  parties  to  a  proceeding 
as  relate  to  questions  in  dispute. 


424    Bradbury's  workmen's  compensation  law 

Michigan 

"§  4.  The  board  shall  cause  to  be  printed  and  fur- 
nish free  of  charge  to  any  employer  or  employ^  such 
blank  forms  as  it  shall  deem  requisite  to  facilitate  or 
promote  the  efficient  administration  of  this  act;  it 
shall  provide  a  proper  record  book  in  which  shall  be 
entered  and  indexed  the  name  of  any  employer  who 
shall  file  a  statement  of  election  under  this  act,  and 
the  date  of  the  filing  thereof  and  its  approval  by  such 
board,  and  a  separate  book  in  which  shall  be  entered 
and  indexed  the  name  of  every  employer  who  shall 
file  his  notice  of  withdrawal  of  said  election,  and  the 
date  of  the  filing  thereof;  and  books  in  which  shall  be 
recorded  all  orders  and  awards  made  by  the  board; 
and  such  other  books  or  records  as  it  shall  deem  re- 
quired by  the  proper  and  efficient  administration  of 
this  act;  all  such  records  to  be  kept  in  the  office  of  the 
board.  Upon  the  filing  of  a  statement  of  election  by 
an  employer  to  become  subject  to  the  provisions  of 
this  act,  the  board  shall  forthwith  cause  such  notice 
of  the  fact  to  be  given  by  requiring  said  employer  to 
post  such  notice  as  hereinbefore  provided;  and  the 
board  shall  likewise  cause  notice  to  be  given  of  the 
filing  of  any  withdrawal  of  such  election;  but  not- 
withstanding the  failure  to  give,  or  the  insufficiency 
of,  any  such  notice,  knowledge  of  all  filed  statements 
of  election  and  notices  of  withdrawal  of  election,  and 
of  the  time  of  the  filing  of  the  same,  shall  conclusively 
be  imputed  to  all  employes. 

"§5.  If  the  employer,  or  the  insurance  company 
carrying  such  risk,  or  commissioner  of  insurance,  as 
the  case  may  be,  and  the  injured  employ^  reach  an 
agreement  in  regard  to  compensation  under  this  act, 
a  memorandum  of  such  agreement  shall  be  filed  with 
the  industrial  accident  board,  and,  if  approved  by  it, 
shall  be  deemed  final  and  binding  upon  the  parties 


PROCEDURE   IN   ADMINISTERING   LAW  425 

Michigan 

thereto.  Such  agreements  shall  be  approved  by  said 
board  only  when  the  terms  conform  to  the  provisions 
of  this  act. 

"  §  6.  If  the  employer,  or  the  insurance  company 
carrying  such  risk,  or  the  commissioner  of  insurance, 
as  the  case  may  be,  and  the  employe  fail  to  reach  an 
agreement  in  regard  to  compensation  under  this  act, 
either  party  may  notify  the  industrial  accident  board, 
who  shall  thereupon  call  for  the  formation  of  a  commit- 
tee of  arbitration.  The  committee  of  arbitration  shall 
consist  of  three  members,  one  of  whom  shall  be  a 
member  of  the  industrial  accident  board,  and  shall 
act  as  chairman.  The  other  two  members  shall  be 
named  respectively  by  the  two  parties. 

"§  7.  It  shall  be  the  duty  of  the  industrial  accident 
board,  upon  notification  that  the  parties  have  failed 
to  reach  an  agreement,  to  request  both  parties  to 
appoint  their  respective  representatives  on  the  com- 
mittee of  arbitration.  The  board  shall  designate  one 
of  its  members  to  act  as  chairman,  and,  if  either 
party  does  not  appoint  its  member  on  this  committee 
within  seven  days  after  notification  as  above  provided, 
the  board  or  any  member  thereof  shall  fill  the  vacancy 
and  notify  the  parties  to  that  effect. 

"  §  8.  The  committee  of  arbitration  shall  make  such 
inquiries  and  investigations  as  it  shall  deem  necessary. 
The  hearings  of  the  committee  shall  be  held  at  the 
locality  where  the  injury  occurred,  and  the  decision 
of  the  committee  shall  be  filed  with  the  industrial 
accident  board.  Unless  a  claim  for  a  review  is  filed 
by  either  party  within  seven  days,  the  decision  shall 
stand  as  the  decision  of  the  industrial  accident  board : 
Provided,  That  said  industrial  accident  board  may, 
for  sufficient  cause  shown,  grant  further  time  in  which 
to  claim  such  review. 


426    Bradbury's  workmen's  compensation  law 

Nevada 

"§  10.  The  arbitrators  named  by  or  for  the  par- 
ties to  the  dispute  shall  each  receive  five  dollars 
a  day  for  his  services,  but  the  industrial  accident 
board  or  any  member  thereof  may  allow  additional 
reasonable  amounts  in  extraordinary  cases.  The 
fees  of  such  arbitrators  and  other  costs  of  such  ar- 
bitration, not  exceeding,  however,  the  taxable  costs 
allowed  in  suits  at  law  in  the  circuit  courts  of  this 
state,  shall  be  fixed  by  the  board  and  paid  by  the  state 
as  the  other  expenses  of  the  board  are  paid.  The  fees 
and  the  payment  thereof  of  all  attorneys  and  physi- 
cians for  services  under  this  act  shall  be  subject  to  the 
approval  of  the  industrial  accident  board. 

"§  16.  All  questions  arising  under  this  act,  if  not 
settled  by  agreement  by  the  parties  interested  therein, 
shall  except  as  otherwise  herein  provided,  be  deter- 
mined by  the  industrial  accident  board." 

NEVADA 

(L.  1911,  c.  183) 

"  §  7.  *  *  *^  If  a  dispute  then  exists  as  to  the 
workman's  condition  or  amount  of  weekly  compen- 
sation such  dispute  shall  be  determined  by  arbitration 
under  this  Act,  or  by  judicial  procedure  as  herein- 
after provided;  provided,  also,  that  any  and  all  disputes 
arising  under  this  Act  may  be  first  submitted  to  a 
board  of  arbitration,  and  in  case  of  failure  to  settle 
it,  resort  may  be  had  to  courts  of  justice." 

"§8.  Arbitration  proceedings  shall  be  as  follows: 
The  employer  and  the  workman  may  each  choose 
one  arbitrator,  the  two  arbitrators  thus  chosen  shall 
choose  a  third,  and  the  three  arbitrators  shall  hear 

1  For  first  part  of  this  section  see  Chapter  XXIII,  ante,  page  391. 
The  first  part  of  the  section,  however,  applies  to  medical  examiua- 
tions  as  to  the  physical  condition  of  the  claimant. 


PROCEDURE   IN   ADMINISTERING   LAW  427 

New  Hampshire 

the  facts  of  the  dispute  within  three  months  after 
having  been  chosen,  and  within  two  weeks  thereafter 
render  a  decision,  which,  if  unanimous,  shall  be  final 
and  binding  on  both  parties." 

"§  9.  On  failure  of  the  board  of  arbitration  to  reach 
an  adjustment  of  the  dispute  above  referred  to,  either 
party  may  apply  to  a  court  of  competent  jurisdiction, 
and  have  an  adjudication  as  in  any  other  controversy. 
And  the  findings  and  judgment  of  the  court  shall 
be  conclusive  on  all  parties  concerned.  Said  courts 
may  compel  the  attendance  of  witnesses  and  the 
production  of  evidence,  as  in  all  other  cases  provided 
for  by  law,  and  the  judgment  of  said  court  may  con- 
tinue and  diminish  or  increase  the  weekly  payments, 
subject  to  the  maximum  provided  in  this  Act.  The 
prevailing  party  in  any  action,  brought  under  the 
provisions  of  this  Act,  shall  be  entitled  to  his  costs 
of  suit  and  reasonable  attorney's  fees;  provided, 
that  nothing  in  this  Act  shall  operate  to  defeat  the 
constitutional  right  of  appeal." 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"  §  9.  Any  question  as  to  compensation  which  may 
arise  under  this  act  shall  be  determined  by  agree- 
ment or  by  an  action  at  equity,  as  hereinafter  pro- 
vided. In  case  the  employer  fail  to  make  compen- 
sation as  herein  provided,  the  injured  workman,  or 
his  guardian  if  such  be  appointed,  or  his  executor  or 
administrator,  may  then  bring  an  action  to  recover 
compensation  under  this  act  in  any  court  having 
jurisdiction  of  an  action  for  recovery  of  damages  for 
negligence  for  the  same  injury  between  the  same  par- 
ties. Such  action  shall  be  by  petition  in  equity,  which 
may  be  made  returnable  at  the  appropriate  term  of 


428    Bradbury's  workmen's  compensation  law 

New  Jersey 

the  Superior  Court  or  may  be  filed  in  the  office  of  the 
Clerk  of  the  Superior  Court  and  presented  in  term 
time  or  vacation  to  any  justice  of  said  court,  who  on 
reasonable  notice  shall  hear  the  parties  and  render 
judgment  thereon.  The  judgment  in  such  action 
if  in  favor  of  the  plaintiff  shall  be  for  a  lump  sum 
equal  to  the  amount  of  payments  then  due  and 
prospectively  due  under  this  act.  In  such  action  by 
an  executor  or  administrator  the  judgment  may  pro- 
vide the  proportions  of  the  award  or  the  costs  to  be 
distributed  to  or  between  the  several  dependents.  If 
such  determination  is  not  made  it  shall  be  determined 
by  the  Probate  Court  in  which  such  executor  or  ad- 
ministrator is  appointed,  in  accordance  with  this  act, 
on  petition  of  any  party  interested,  on  such  notice  as 
such  court  may  direct.  Any  employer  who  has  de- 
clared his  intention  to  act  under  the  compensation 
features  of  this  act  shall  also  have  the  right  to  apply 
by  similar  proceedings  to  the  Superior  Court  or  to 
any  justice  thereof  for  a  determination  of  the  amount 
of  the  weekly  payments  to  be  paid  the  injured  work- 
man, or  of  a  lump  sum  to  be  paid  the  injured  workman 
in  lieu  of  such  weekly  payments;  and  either  such 
employer  or  workman  may  apply  to  said  Superior 
Court  or  to  any  justice  thereof  in  similar  proceedings 
for  the  determination  of  any  other  question  that  may 
arise  under  the  compensation  features  of  this  act;  and 
said  court  or  justice,  after  reasonable  notice  and 
hearing,  may  make  such  order  as  to  the  matter  in 
dispute  and  taxable  costs  as  justice  may  require." 

j  NEW  JERSEY 

(L.  1911,  c.  95) 

"§  II,  18.  In  case  of  dispute  question  submitted  to 
court.     In  case  of  a  dispute  over,  or  failure  to  agree 


PROCEDURE    IN   ADMINISTERING   LAW  429 

New  Jersey 

upon,  a  claim  for  compensation  between  employer 
and  employ^,  or  the  dependents  of  the  employe, 
either  party  may  submit  the  claim  both  as  to  questions 
of  fact,  the  nature  and  effect  of  the  injuries,  and  the 
amount  of  compensation  therefor  according  to  the 
schedule  herein  provided,  to  the  judge  of  the  court 
of  common  pleas  of  such  county  as  would  have  juris- 
diction in  a  civil  case,  or  where  there  is  more  than 
one  judge  of  said  court,  then  to  either  or  any  of  said 
judges  of  such  court,  which  judge  is  hereby  authorized 
to  hear  and  determine  such  disputes  in  a  summary 
manner,  and  his  decision  as  to  all  questions  of  fact 
shall  be  conclusive  and  binding." 

"19.  Payment  in  case  of  death.  In  case  of  death 
where  no  executor  or  administrator  is  qualified,  the 
said  judge  shall,  by  order,  direct  payment  to  be  made 
to  such  person  as  would  be  appointed  administrator 
of  the  estate  of  such  decedent  upon  like  terms  as  to 
bond  for  the  proper  application  of  compensation  pay- 
ments as  are  required  of  administrators. 

"20.  Procedure  in  dispute.  Procedure  in  case  of 
dispute  shall  be  as  follows: 

"Petition  to  court.  Either  party  may  present  a 
petition  to  said  judge  setting  forth  the  names  and 
residences  of  the  parties  and  the  facts  relating  to 
employment  at  the  time  of  injury,  the  injury  in  its 
extent  and  character,  the  amount  of  wages  received 
at  the  time  of  injury,  the  knowledge  of  the  employer 
or  notice  of  the  occurrence  of  said  injury,  and  such 
other  facts  as  may  be  necessary  and  proper  for  the 
information  of  the  said  judge,  and  shall  state  the 
matter  or  matters  in  dispute  and  the  contention  of 
the  petitioner  with  reference  thereto.  This  petition 
shall  be  verified  by  the  oath  or  affirmation  of  the 
petitioner. 


430    Bradbury's  workmen's  compensation  law 

New  Jersey 

^^  Notice  of  hearing.  Answer  filed.  Upon  the  pres- 
entation of  such  petition  the  same  shall  be  filed  with 
the  clerk  of  the  court  of  common  pleas,  and  the  judge 
shall  fix  a  time  and  place  for  the  hearing  thereof,  not 
less  than  three  weeks  after  the  date  of  the  filing  of 
said  petition.  A  copy  of  said  petition  shall  be  served 
as  summons  in  a  civil  action  and  may  be  served  within 
four  days  thereafter  upon  the  adverse  party.  Within 
seven  days  after  the  service  of  such  notice  the  adverse 
party  shall  file  an  answer  to  said  petition,  which  shall 
admit  or  deny  the  substantial  averments  of  the  peti- 
tion, and  shall  state  the  contention  of  the  defendant 
with  reference  to  the  matters  in  dispute  as  disclosed 
by  the  petition.  The  answer  shall  be  verified  in  like 
manner  as  required  for  a  petition. 

"Hear  witnesses.  Determination.  Subsequent  pro- 
ceedings. As  to  costs.  At  the  time  fixed  for  hearing  or 
any  adjournment  thereof  the  said  judge  shall  hear 
such  witnesses  as  may  be  presented  by  each  party,  and 
in  a  summary  manner  decide  the  merits  of  the  con- 
troversy. This  determination  shall  be  filed  in  writing 
with  the  clerk  of  the  common  pleas  court,  and  judg- 
ment shall  be  entered  thereon  in  the  same  manner  as 
in  causes  tried  in  the  court  of  common  pleas,  and  shall 
contain  a  statement  of  facts  as  determined  by  said 
judge.  Subsequent  proceedings  thereon  shall  only  be 
for  the  recovery  of  moneys  thereby  determined  to  be 
due,  provided  that  nothing  herein  contained  shall  be 
construed  as  limiting  the  jurisdiction  of  the  Supreme 
Court  to  review  questions  of  law  by  certiorari.  Costs 
may  be  awarded  by  said  judge  in  his  discretion, 
and  when  so  awarded  the  same  costs  shall  be  al- 
lowed, taxed  and  collected  as  are  allowed,  taxed 
and  collected  for  like  services  in  the  common  pleas 
court." 


I 


I 


PROCEDURE    IN    ADMINISTERING   LAW  431 

New  Jersey 

"Chapter  No.  241— Laws  of  1911 
"AN  ACT 

"Creating  the  employers'  liability  commission  and 
prescribing  its  powers  and  duties,  and  requiring  re- 
ports to  be  made  by  the  employers  of  labor  upon  the 
operations  of  the  employers'  liability  law  for  the  in- 
formation of  said  commission. 

"Be  it  enacted  by  the  Senate  and  General  Assembly 
of  the  State  of  New  Jersey: 

"1.  The  Governor  is  hereby  authorized  to  appoint 
six  citizens  of  this  State  as  an  employers'  liability 
commission,  who  shall  hold  their  offices  for  the  term  of 
two  years  and  until  their  successors  are  appointed 
and  qualified.  They  shall  receive  no  compensation  for 
their  services,  but  their  actual  traveling  expenses 
incurred  upon  the  business  of  the  commission  shall  be 
paid  by  the  State  Treasurer,  upon  warrants  approved 
by  the  president  of  the  said  commission.  The  com- 
mission shall  have  power  to  choose  one  of  their  number 
as  president  and  one  of  their  number  as  secretary,  and 
shall  have  power  to  appoint  a  clerk.  The  expenses  of 
the  commission,  the  salary  of  the  secretary  and  of 
the  clerk  shall  be  paid  from  appropriations  made  for 
that  purpose  in  any  annual  or  supplemental  appro- 
priation bill.  It  shall  be  the  duty  of  the  commission 
to  observe  in  detail,  so  far  as  possible,  the  operations 
throughout  the  State  of  the  recent  act  of  the  Legis- 
lature commonly  known  as  '  The  Employers'  Liability 
Act,'  entitled  'An  act  prescribing  the  liability  of  an 
employer,  to  make  compensation  for  injuries  received 
by  an  employe  in  the  course  of  employment,  estab- 
lishing an  elective  schedule  of  compensation  and 
regulating  procedure  for  the  determination  of  liability 


432    Bradbury's  workmen's  compensation  law 

Ohio 

and  compensation  thereunder,'  approved  April  fourth, 
one  thousand  nine  hundred  and  eleven. 

"3.  This  act  shall  take  effect  immediately. 
"Approved  by  the  Governor,  April  27,  1911." 

OHIO 

(L.  1911,  0.  000) 

"§  1.  Creating  Board  of  Awards.  There  is  hereby 
created  a  State  Liability  Board  of  Awards,  to  be 
composed  of  three  members,  not  more  than  two  of 
whom  shall  belong  to  the  same  political  party,  to  be 
appointed  by  the  governor,  within  thirty  days  after 
the  passage  of  this  act,  one  of  which  members  shall 
be  appointed  for  the  term  of  two  years,  one  member 
for  four  years  and  one  member  for  six  years,  and 
thereafter  as  their  terms  expire  the  governor  shall 
appoint  one  member  for  the  term  of  six  years.  Vacan- 
cies shall  be  filled  by  appointment  by  the  governor  for 
the  unexpired  term. 

"§2.  Duties.  Each  member  of  the  Board  shall 
devote  his  entire  time  to  the  duties  of  his  office  and 
shall  not  hold  any  position  of  trust  or  profit  or  engage 
in  any  occupation  or  business  interfering  or  incon- 
sistent with  his  duty  as  such  member,  or  serve  on  or 
under  any  committee  of  any  political  party. 

"§3.  Salary.  Each  member  of  the  Board  shall 
receive  an  annual  salary  of  five  thousand  dollars,  pay- 
able in  the  same  manner  as  salaries  of  state  officers  are 
paid. 

"§4.  Sessions.  The  Board  shall  be  in  continuous 
session  and  open  for  the  transaction  of  business  during 
all  the  business  hours  of  each  and  every  day,  excepting 
Sundays  and  legal  holidays.    All  sessions  shall  be  open  ' 


PROCEDURE    IN    ADMINISTERING   LAW  433 

Ohio 

to  the  public,  and  shall  stand  and  be  adjourned  with- 
out further  notice  thereof  on  its  records.  All  proceed- 
ings of  the  Board  shall  be  shown  on  its  record  of 
proceedings,  which  shall  be  a  public  record,  and 
shall  contain  a  record  of  each  case  considered,  and  the 
award  made  with  respect  thereto,  and  all  voting  shall 
be  had  by  the  calling  of  each  member's  name  by  the 
secretary  and  each  vote  shall  be  recorded  as  cast. 

"§  5.  Quorum.  A  majority  of  the  board  shall  con- 
stitute a  quorum  for  the  transaction  of  business,  and 
a  vacancy  shall  not  impair  the  right  of  the  remaining 
members  to  exercise  all  the  powers  of  the  full  Board  so 
long  as  a  majority  remains.  Any  investigations,  in- 
quiry or  hearing  which  the  Board  is  authorized  to 
hold,  or  undertake,  may  be  held  or  undertaken  by  or 
before  any  one  member  of  the  Board.  All  investiga- 
tions, inquiries,  hearings,  and  decisions  of  the  Board, 
and  every  order  made  by  a  member  thereof,  when 
approved  and  confirmed  by  a  majority  of  the  members, 
and  so  shown  on  its  record  of  proceedings,  shall  be 
deemed  to  be  the  order  of  the  Board. 

"  §  6.  Office.  The  Board  shall  keep  and  maintain  its 
office  in  the  city  of  Columbus,  and  shall  provide  a 
suitable  room  or  rooms,  necessary  office  furniture, 
supplies,  books,  periodicals  and  maps.  All  necessary 
expenses  shall  be  audited  and  paid  out  of  the  state 
treasury.  The  Board  may  hold  sessions  at  any  place 
within  the  State. 

"§  7.  Employes.  The  Board  may  employ  a  secre- 
tary, actuary,  accountants,  inspectors,  examiners,  ex- 
perts, clerks,  stenographers  and  other  assistants,  and 
fix  their  compensation.  Such  employments  and  com- 
pensation shall  be  first  approved  by  the  governor,  and 
shall  be  paid  out  of  the  state  treasury.  The  members 
of  the  Board,  actuaries,  accountants,  inspectors,  ex- 

28 


434    Bradbury's  workmen's  compensation  law 

Ohio 

aminers,  experts,  clerks,  stenographers  and  other 
assistants  that  may  be  employed  shall  be  entitled  to 
receive  from  the  state  treasury  their  actual  and  neces- 
sary expenses  while  traveling  in  the  business  of  the 
Board.  Such  expenses  shall  be  itemized  and  sworn  to 
by  the  person  who  incurred  the  expense,  and  allowed 
by  the  Board. 

"  §  8.  Rules.  The  Board  shall  adopt  reasonable 
and  proper  rules  to  govern  its  procedure,  regulate 
and  provide  for  the  kind  and  character  of  notices,  and 
the  services  thereof,  in  cases  of  accident  and  injury  to 
employes,  the  nature  and  extent  of  the  proofs  and 
evidence,  and  the  method  of  taking  and  furnishing  the 
same,  to  establish  the  right  to  benefits  of  compensation 
from  the  state  insurance  fund,  hereinafter  provided 
for,  the  forms  of  application  of  those  claiming  to  be 
entitled  to  benefits  or  compensation  therefrom,  the 
method  of  making  investigations,  physical  examina- 
tions and  inspections,  and  prescribe  the  time  within 
which  adjudications  and  awards  shall  be  made. 

Sections  9  and  10  relate  to  the  furnishing  of  informa- 
tion by  employers  and  the  supplying  of  blanks  for  this 
purpose  by  the  Board  of  Awards.  See  Chapter  XXIX, 
post,  page  542. 

"§  11.  Powers.  Each  member  of  the  Board,  the 
secretary  and  every  inspector  or  examiner  appointed 
by  the  Board  shall,  for  the  purposes  contemplated  by 
this  act,  have  power  to  administer  oaths,  certify  to 
official  acts,  take  depositions,  issue  subpoenas,  compel 
the  attendance  of  witnesses  and  the  production  of 
books,  accounts,  papers,  records,  documents  and  testi- 
mony. 

"§  12.  Disobedience  of  orders.    In  case  of  disobe- 


PROCEDURE    IN    ADMINISTERING   LAW  435 

Ohio 

dience  of  any  person  to  comply  with  the  order  of  the 
Board,  or  subpoena  issued  by  it  as  one  of  its  inspectors, 
or  examiners,  or  on  the  refusal  of  a  witness  to  testify  to 
any  matter  regarding  which  he  may  be  lawfully  in- 
terrogated, or  refuse  to  permit  an  inspection  as  afore- 
said, the  probate  judge  of  the  county  in  which  the 
person  resides,  on  application  of  any  member  of  the 
Board,  or  any  inspector  or  examiner  appointed  by  it, 
shall  compel  obedience  by  attachment  proceedings  as 
for  contempt,  as  in  the  case  of  disobedience  of  the 
requirements  of  subpoena  issued  from  such  court  on 
a  refusal  to  testify  therein. 

"§  13.  Fees.  Each  officer  who  serves  such  subpoena 
shall  receive  the  same  fees  as  a  sheriff,  and  each  wit- 
ness who  appears,  in  obedience  to  a  subpoena,  before 
the  Board  or  an  inspector  or  examiner,  shall  receive 
for  his  attendance  the  fees  and  mileage  provided  for 
witnesses  in  civil  cases  in  courts  of  common  pleas, 
which  shall  be  audited  and  paid  from  the  state 
treasury  in  the  same  manner  as  other  expenses  are 
audited  and  paid,  upon  the  presentation  of  proper 
vouchers  approved  by  any  two  members  of  the  Board. 
No  witness  subpoenaed  at  the  instance  of  a  party 
other  than  the  board  or  an  inspector  shall  be  entitled 
to  compensation  from  the  state  treasury  unless  the 
Board  shall  certify  that  his  testimony  was  material 
to  the  matter  investigated. 

"§14.  Depositions.  In  an  investigation,  the  Board 
may  cause  depositions  of  witnesses  residing  within  or 
without  the  State  to  be  taken  in  the  manner  pre- 
scribed by  the  law  for  like  depositions  in  civil  actions 
in  the  court  of  common  pleas. 

"§  15.  Evidence.  A  transcribed  copy  of  the  evi- 
dence and  proceedings,  or  any  specific  part  thereof,  of 
any  investigation,  by  a  stenographer  appointed  by 


436    Bradbury's  workmen's  compensation  law 

Ohio  j 

the  Board,  being  certified  by"  such  stenographer  to  be 
a  true  and  correct  transcript  of  the  testimony  on  the 
investigation,  or  of  a  particular  witness,  or  of  a 
specific  part  thereof,  carefully  corn-pared  by  him  with 
his  original  notes,  and  to  be  a  correct  statement  of  the 
evidence  and  proceedings  had  on  such  investigation 
so  purporting  to  be  taken  and  subscribed,  may  be 
received  in  evidence  by  the  Board  with  the  same 
effect  as  if  such  stenographer  were  present  and  testi- 
fied to  the  facts  so  certified.  A  copy  of  such  transcript 
shall  be  furnished  on  demand  to  any  party  upon  the 
payment  of  the  fee  therefor,  as  provided  for  transcript 
in  courts  of  common  pleas. 

**§  16,  Forms  and  rules.  The  Board  shall  prepare 
and  furnish  blank  forms,  and  provide  in  its  rules  for 
their  distribution  so  that  the  same  may  be  readily 
available,  of  application  for  benefits  or  compensation 
from  the  state  insurance  fund,  notices  to  employers, 
proofs  of  injury  or  death,  of  medical  attendance,  of 
employment  and  wage  earnings,  and  such  other 
blanks  as  may  be  deemed  proper  and  advisable,  and 
it  shall  be  the  duty  of  insured  employers  to  constantly 
keep  on  hand  a  sufficient  supply  of  such  blanks." 


"§21.  The  State  LiabiHty  Board  of  Awards  shall 
disburse  the  state  insurance  fund  to  such  employes  of 
employers  as  have  paid  into  said  fund  the  premiums 
applicable  to  the  classes  to  which  they  belong,  that 
have  been  injured  in  the  course  of  their  employment, 
wheresoever  such  injury  has  occurred,  and  which  have 
not  been  purposely  self-inflicted,  or  to  their  dependents 
in  case  death  has  ensued." 

"§36.  Decisions  of  hoard.  The  Board  shall  have 
full  power  and  authority  to  hear  and  determine  all 


PROCEDURE    IN    ADMINISTERING   LAW  437 

Ohio 

questions   within   its   jurisdiction,    and   its   decision 
thereon  shall  be  final. 

"Provided,  however,  in  case  the  final  action  of  such 
Board  denies  the  right  of  the  claimant  to  participate 
at  all  in  such  fund  on  the  ground  that  the  injury  was 
self-inflicted  or  on  the  ground  that  the  accident  did 
not  arise  in  the  course  of  employment,  or  upon  any 
other  ground  going  to  the  basis  of  the  claimant's  right, 
then  the  claimant  within  thirty  (30)  days  after  the 
notice  of  the  final  action  of  such  board  may,  by  filingi 
his  appeal  in  the  common  pleas  court  of  the  county 
wherein  the  injury  was  inflicted,  be  entitled  to  a  trial 
in  the  ordinary  way,  and  be  entitled  to  a  jury  if  he 
demands  it.  In  such  a  proceeding,  the  prosecuting 
attorney  of  the  county,  without  additional  compensa- 
tion, shall  represent  the  State  Liability  Board  of 
Awards,  and  he  shall  be  notified  by  the  clerk  forthwith 
of  the  filing  of  such  appeal. 

"Within  thirty  days  after  filing  his  appeal,  the 
appellant  shall  file  a  petition  in  the  ordinary  form 
against  such  Board  as  defendant  and  further  pleadings 
shall  be  had  in  said  cause  according  to  the  rules  of  civil 
procedure,  and  the  court,  or  the  jury,  under  the  in- 
structions of  the  court,  if  a  jury  is  demanded,  shall 
determine  the  right  of  the  claimant;  and,  if  they 
determine  the  right  in  his  favor,  shall  fix  his  compen- 
sation within  the  limits  and  under  the  rules  prescribed 
in  this  act;  and  any  final  judgment  so  obtained  shall 
be  paid  by  the  State  Liability  Board  of  Awards  out 
of  the  state  insurance  fund  in  the  same  manner  as 
such  awards  are  paid  by  such  board. 

"The  costs  of  such  proceeding,  including  a  reason- 
able attorney's  fee  to  the  claimant's  attorney  to  be 
fixed  by  the  trial  judge,  shall  be  taxed  against  the 
unsuccessful    party.     Either    party  shall    have    the 


438    Bradbury's  workmen's  compensation  law 

Rhode  Island 

right   to   prosecute   error   as   in   the   ordinary   civil 
cases." 

"§36-1.  Procedure  of  hoard.  Such  Board  shall 
not  be  bound  by  the  usual  common-law  or  statutory 
rules  of  evidence  or  by  any  technical  or  formal  rules 
of  procedure,  other  than  as  herein  provided;  but  may 
make  the  investigation  in  such  manner  as  in  their 
judgment  is  best  calculated  to  ascertain  the  sub- 
stantial rights  of  the  parties  and  to  carry  out  justly 
'  the  spirit  of  this  act." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"ARTICLE  III 

"Procedure 

"§  1.  Agreement  as  to  compensation.  If  the  em- 
ployer and  the  employ^  reach  an  agreement  in  regard 
to  compensation  under  this  act,  a  memorandum  of 
such  agreement  signed  by  the  parties  shall  be  filed  in 
the  office  of  the  clerk  of  the  superior  court  having 
jurisdiction  of  the  matter  as  provided  in  section  16 
of  this  Article.  The  clerk  shall  forthwith  docket  the 
same  in  a  book  kept  for  that  purpose,  and  shall  there- 
upon present  said  agreement  to  a  justice  of  the  su- 
perior court,  and  when  approved  by  the  justice  the 
agreement  shall  be  enforceable  by  said  superior  court 
by  any  suitable  process,  including  executions  against 
goods,  chattels,  and  real  estate,  and  including  pro- 
ceedings for  contempt  for  willful  failure  or  neglect 
to  obey  the  provisions  of  said  agreement.  No  appeal 
shall  lie  from  the  agreement  thus  approved  unless 
upon  allegation  that  such  agreement  had  been  pro- 
'  cured  by  fraud  or  coercion.    Such  agreement  shall  be 


PROCEDURE    IN    ADMINISTERING    LAW  439 

Rhode  Island 

approved  by  the  justice  only  when  its  terms  conform 
to  the  provisions  of  this  act. 

"When  death  has  resulted  from  the  injury  and  the 
dependents  of  the  deceased  employ^  entitled  to  com- 
pensation are,  or  the  apportionment  thereof  among 
them  is,  in  dispute,  such  agreement  may  relate  only  to 
the  amount  of  compensation. 

"§2.  Failure  to  agree.  If  the  employer  and  em- 
ploye fail  to  reach  an  agreement  in  regard  to  com- 
pensation under  this  act,  either  employer  or  employ^, 
and  when  death  has  resulted  from  the  injury  and  the 
dependents  of  the  deceased  employe  entitled  to  com- 
pensation are,  or  the  apportionment  thereof  among 
them  is,  in  dispute,  any  person  in  interest  may  file  in 
the  office  of  the  clerk  of  the  superior  court  having 
jurisdiction  of  the  matter  as  provided  in  section  16  of 
this  Article,  a  petition  in  the  nature  of  a  petition  in 
equity  setting  forth  the  names  and  residences  of  the 
parties,  the  facts  relating  to  employment  at  the  time 
of  the  injury,  the  cause,  extent  and  character  of  the 
injury,  the  amount  of  wages,  earnings,  or  salary  re- 
ceived at  the  time  of  the  injury,  and  the  knowledge  of 
the  employer  or  notice  of  the  occurrence  of  the  injury, 
and  such  other  facts  as  may  be  necessary  and  proper 
for  the  information  of  the  court,  and  shall  state  the 
matter  in  dispute  and  the  claims  of  the  petitioner  with 
reference  thereto. 

"  §  3.  Copy  of  petition.  Within  four  days  after  the 
filing  of  the  petition,  a  copy  thereof,  attested  by  the 
petitioner  or  his  attorney,  shall  be  served  upon  the 
respondent  in  the  same  manner  as  a  writ  of  summons 
in  a  civil  action, 

"§4.  Answer  to  petition.  Within  ten  days  after 
the  filing  of  the  petition,  the  respondent  shall  file  an 
answer  to  said  petition,  together  with  a  copy  thereof 


440    Bradbury's  workmen's  compensation  law 

Rhode  Island 

for  the  use  of  the  petitioner,  which  shall  state  the 
claims  of  the  respondent  with  reference  to  the  matter 
in  dispute  as  disclosed  by  the  petition.  No  pleadings 
other  than  petition  and  answer  shall  be  required  to 
bring  the  cause  to  a  hearing  for  final  determination. 
The  superior  court  may  grant  further  time  for  filing 
the  answer  and  allow  amendments  of  said  petition  and 
answer  at  any  stage  of  the  proceedings.  If  the  re- 
spondent do  not  file  an  answer,  the  cause  shall  pro- 
ceed without  formal  default  or  decree  pro  confesso.  If 
the  respondent  be  an  infant  or  person  under  disability, 
the  superior  court  shall  appoint  a  guardian  ad  litem 
for  such  infant  or  person  under  disability.  Such 
guardian  ad  litem  may  be  appointed  on  any  court  day 
after  service  of  the  copy  referred  to  in  section  3  of 
this  Article,  upon  motion  of  any  party  after  notice 
given  as  required  for  motions  made  in  the  superior 
court,  and  opportunity  to  said  infant  or  person  under 
disability  to  be  heard  in  regard  to  the  choice  of  such 
guardian  ad  litem.  The  guardian  ad  litem  so  ap- 
pointed shall  file  the  answer  required  by  this  section. 

"§5.  Assignment  for  hearing.  The  petition  shall 
be  in  order  for  assignment  for  hearing  on  the  motion 
day  which  occurs  next  after  fifteen  days  from  the 
filing  of  the  petition.  Upon  the  days  upon  which 
said  petition  shall  be  in  order  for  hearing  it  shall  take 
precedence  of  other  cases  upon  the  calendar,  except 
cases  for  tenements  let  or  held  at  will  or  by  sufferance. 

"§  6.  Hearing.  The  justice  to  whom  said  petition 
shall  be  referred  by  the  court  shall  hear  such  witnesses 
as  may  be  presented  by  each  party,  and  in  a  summary 
manner  decide  the  merits  of  the  controversy.  His 
decision  shall  be  filed  in  writing  with  the  clerk,  and  a 
decree  shall  be  entered  thereon.  Such  decree  shall  be 
enforceable  by  said  superior  court  by  any  suitable 


PROCEDURE    IN   ADMINISTERING   LAW  441 

Rhode  Island 

process,  including  executions  against  goods,  chattels, 
and  real  estate,  and  including  proceedings  for  con- 
tempt for  willful  failure  or  neglect  to  obey  the  pro- 
visions of  said  decree.  Such  decree  shall  contain 
findings  of  fact,  which,  in  the  absence  of  fraud,  shall 
be  conclusive.  The  superior  court  may  award  as 
costs  the  actual  expenditures,  or  such  part  thereof  as 
to  the  court  shall  seem  meet,  but  not  including  coun- 
sel fees,  and  shall  include  such  costs  in  its  decree. 
The  superior  court  may  refuse  to  award  costs,  and 
no  costs  shall  be  awarded  against  an  mfant  or  person 
under  disability  or  against  a  guardian  ad  litem." 

"Art.  Ill,  §  15.  Procedure.  The  superior  court 
shall  prescribe  forms  and  make  suitable  orders  as  to 
procedure  adapted  to  secure  a  speedy,  efficient  and 
inexpensive  disposition  of  all  proceedings  under  this 
act;  and  in  making  such  orders  said  court  shall  not  be 
bound  by  the  provisions  of  the  General  Laws  relating 
to  practice.  In  the  absence  of  such  orders,  special 
orders  shall  be  made  m  each  case. 

"§  16.  Actions  where  brought.  Proceedings  shall 
be  brought  either  in  the  county  where  the  accident 
occurred  or  in  the  county  where  the  employer  or 
employ^  lives  or  has  a  usual  place  of  business.  The 
court  where  any  proceeding  is  brought  shall  have 
power  to  grant  a  change  of  venue. 

"§  17.  Actions  not  to  abate.  No  proceedings  under 
this  act  shall  abate  because  of  the  death  of  the  peti- 
tioner, but  may  be  prosecuted  by  his  legal  repre- 
sentative or  by  any  person  entitled  to  compensation 
by  reason  of  said  death,  under  the  provisions  of  this 
act." 

"Art.  Ill,  §  19.  Monthly  payments.  If  an  employ^ 
receiving  a  weekly  payment  under  this  act  shall  cease 
to  reside  in  the  state,  or,  if  his  residence  at  the  time 


442    Bradbury's  workmen's  compensation  law 

Washington 

of  the  accident  is  in  an  adjoining  state,  the  superior 
court,  upon  the  appUcation  of  either  party,  may,  in  its 
discretion,  having  regard  to  the  welfare  of  the  em- 
ploy4  and  the  convenience  of  the  employer,  order 
such  payment  to  be  made  monthly  or  quarterly  in- 
stead of  weekly. 

"§20.  Court  settles  questions.  All  questions  aris- 
ing under  this  act,  if  not  settled  by  agreement  of  the 
parties  interested  therein,  shall,  except  as  otherwise 
herein  provided,  be  determined  by  the  superior  court." 

WASHINGTON 

(L.  1911,  c.  74) 

"§21.  Creation  of  department.  The  administra- 
tion of  this  act  is  imposed  upon  a  department,  to  be 
known  as  the  Industrial  Insurance  Department,  to 
consist  of  three  commissioners  to  be  appointed  by  the 
governor.  One  of  them  shall  hold  office  for  the  first 
two  years,  another  for  the  first  four  years,  and  another 
for  the  first  six  years  following  the  passage  and  ap- 
proval of  this  act.  Thereafter  the  term  shall  be  six 
years.  Each  commissioner  shall  hold  until  his  suc- 
cessor shall  be  appointed  and  shall  have  quaUfied. 
A  decision  of  any  question  arising  under  this  act 
concurred  in  by  two  of  the  commissioners  shall  be  the 
decision  of  the  department.  The  governor  may  at  any 
time  remove  any  commissioner  from  office  in  his  dis- 
cretion, but  within  ten  days  following  any  such  re- 
moval the  governor  shall  file  in  the  office  of  the 
secretary  of  state  a  statement  of  his  reasons  therefor. 
The  commission  shall  select  one  of  their  members  as 
chairman.  The  main  office  of  the  commission  shall 
be  at  the  state  capitol,  but  branch  offices  may  be  es- 
tablished at  other  places  in  the  State.    Each  member 


PROCEDURE    IN   ADMINISTERING   LAW  443 

Washington 

of  the  commission  shall  have  power  to  issue  subpcEnas 
requiring  the  attendance  of  witnesses  and  the  pro- 
duction of  books  and  documents. 

"§22.  Salary  of  Commissioners.  The  salary  of 
each  of  the  commissioners  shall  be  thirty-six  hundred 
dollars  per  annum,  and  he  shall  be  allowed  his  actual 
and  necessary  traveling  and  incidental  expenses;  and 
any  assistant  to  the  commissioners  shall  be  paid  for 
each  full  day's  service  rendered  by  him,  his  actual  and 
necessary  traveling  expenses  and  such  compensation 
as  the  commission  may  deem  proper,  not  to  exceed 
six  dollars  per  day  to  an  auditor,  or  five  dollars  per 
day  to  any  other  assistant. 

"§23.  Deputies  and  Assistants.  The  commissioners 
may  appoint  a  sufficient  number  of  auditors  and 
assistants  to  aid  them  in  the  administration  of  this 
act,  at  an  expense  not  to  exceed  $5,000.00  per  month. 
They  may  employ  one  or  more  physicans  in  each 
county  for  the  purpose  of  official  medical  examina- 
tions, whose  compensation  shall  be  limited  to  five 
dollars  for  each  examination  and  report  therein.  They 
may  procure  such  record  books  as  they  may  deem 
necessary  for  the  record  of  the  financial  transactions 
and  statistical  data  of  the  department,  and  the  nec- 
essary documents,  forms  and  blanks.  They  may 
establish  and  require  all  employers  to  install  and 
maintain  an  uniform  form  of  pay  roll. 

"§24.  Conduct,  Management  and  Supervision  of 
Department.  The  commission  shall,  in  accordance 
with  the  provisions  of  this  act: 

"1.  Establish  and  promulgate  rules  governing  the 
administration  of  this  Act. 

"2.  Ascertain  and  establish  the  amounts  to  be  paid 
into  and  out  of  the  accident  fund. 

"3.  Regulate   the   proof  of   accident   and   extent 


444    beadbury's  workmen's  compensation  law 

Washington 

thereof,  the  proof  of  death  and  the  proof  of  relation- 
ship and  the  extent  of  dependency. 

"4.  Supervise  the  medical,  surgical  and  hospital 
treatment  to  the  intent  that  same  may  be  in  ail  cases 
suitable  and  wholesome. 

"5.  Issue  proper  receipts  for  moneys  received,  and 
certificates  for  benefits  accrued  and  accruing. 

"6.  Investigate  the  cause  of  all  serious  injuries  and 
report  to  the  governor  from  time  to  time  any  viola- 
tions or  laxity  in  performance  of  protective  statutes 
or  regulations  coming  under  the  observation  of  the 
department. 

"7.  Compile  and  preserve  statistics  showing  the 
number  of  accidents  occurring  in  the  establishment  or 
works  of  each  employer,  the  liabilities  and  expendi- 
tures of  the  accident  fund  on  account  of,  and  the 
premium  collected  from  the  same,  and  hospital 
charges  and  expenses. 

"8.  Make  annual  reports  to  the  governor  (one  of 
them  not  more  than  sixty  nor  less  than  thirty  days 
prior  to  each  regular  session  of  the  legislature)  of  the 
workings  of  the  department,  and  showing  the  financial 
status  and  the  outstanding  obligations  of  the  accident 
fund,  and  the  statistics  aforesaid." 

"§26.  Disbursement  of  Funds.  Disbursement  out 
of  the  funds  shall  be  made  only  upon  warrants  drawn 
by  the  state  auditor  upon  vouchers  therefor  trans- 
mitted to  him  by  the  department  and  audited  by 
him.  The  state  treasurer  shall  pay  every  warrant 
out  of  the  fund  upon  which  it  is  drawn.  If,  at  any 
time,  there  shall  not  be  sufficient  money  in  the  fund 
on  which  any  such  warrant  shall  have  been  drawn 
wherewith  to  pay  the  same,  the  employer  on  account 
of  whose  workman  it  was  that  the  warrant  was  drawn 
shall  pay  the  same,  and  he  shall  be  credited  upon  his 


PROCEDURE    IN   ADMINISTERING   LAW  445 

Washington 

next  following  contribution  to  such  fund  the  amount 
so  paid  with  interest  thereon  at  the  legal  rate  from 
the  date  of  such  payment  to  the  date  such  next  fol- 
lowing contribution  became  payable,  and  if  the  amount 
of  the  credit  shall  exceed  the  amount  of  the  con- 
tribution, he  shall  have  a  warrant  upon  the  same  fund 
for  the  excess,  and  if  any  such  warrant  shall  not  be 
so  paid,  it  shall  remain,  nevertheless,  payable  out 
of  the  fund.  The  state  treasurer  shall  to  such  extent 
as  shall  appear  to  him  to  be  advisable  keep  the  moneys 
of  the  unsegregated  portion  of  the  accident  fund  in- 
vested at  interest  in  the  class  of  securities  provided 
by  law  for  the  investment  of  the  permanent  school 
fund.  The  state  treasurer  shall  be  liable  on  his 
official  bond  for  the  safe  custody  of  the  moneys  and 
securities  of  the  accident  fund,  but  all  the  provisions 
of  an  act  approved  February  21,  1907,  entitled  "An 
act  to  provide  for  state  depositories  and  to  regulate 
the  deposits  of  state  moneys  therein,"  shall  be  ap- 
plied to  said  moneys  and  the  handling  thereof  by  the 
state  treasurer. 

"§27.  Test  of  Invalidity  of  Act}  If  any  employer 
shall  be  adjudicated  to  be  outside  the  lawful  scope 
of  this  Act,  the  Act  shall  not  apply  to  him  or  his 
workman,  or  if  any  workman  shall  be  adjudicated 
to  be  outside  the  lawful  scope  of  this  Act  because  of 
remoteness  of  his  work  from  the  hazard  of  his  em- 
ployer's work,  any  such  adjudication  shall  not  impair 
the  validity  of  this  Act  in  other  respects,  and  in  every 
such  case  an  accounting  in  accordance  with  the  justice 
of  the  case  shall  be  had  of  moneys  received.  If  the 
provisions  of  section  4  of  this  Act  for  the  creation 
of  the  accident  fund,  or  the  provisions  of  this  Act 

»  See  §  28,  in  Chapter  XXII,  for  effect  on  Statute  of  Limitations 
of  adjudication  of  invalidity  of  Act.   Ante,  page  381. 


446    Bradbury's  workmen's  compensation  law 

Wisconsin 

making  the  compensation  to  the  workman  provided 
in  it  exclusive  of  any  other  remedy  on  the  part  of  the 
workman  shall  be  held  invalid  the  entire  Act  shall 
be  thereby  invalidated  except  the  provisions  of  section 
31,  and  an  accounting  according  to  the  justice  of 
the  case  shall  be  had  of  moneys  received.  In  other 
respects  an  adjudication  of  invalidity  of  any  part 
of  this  Act  shall  not  affect  the  validity  of  the  Act 
as  a  whole  or  any  other  part  thereof." 

WISCONSIN 

(L.  1911,  0.  50) 

"§  2394-13.  There  is  hereby  created  a  board  which 
shall  be  known  as  the  industrial  accident  board. 
The  commissioner  of  labor  and  industrial  statistics 
shall  be  ex-officio  a  member  of  such  board.  He  may 
however,  authorize  the  deputy  commissioner  to  act, 
in  his  place.  Within  thirty  days  after  the  passage 
of  this  Act,  the  governor,  by  and  with  the  advice 
and  consent  of  the  senate,  shall  appoint  a  member 
who  shall  serve  two  years,  and  another  who  shall 
serve  four  years.  Thereafter  such  two  members  shall 
be  appointed  and  confirmed  for  terms  of  four  years 
each.  Vacancies  shall  be  filled  in  the  same  manner 
for  the  unexpired  term.  Each  member  of  the  board, 
before  entering  upon  the  duties  of  his  office,  shall 
take  the  oath  prescribed  by  the  constitution.  A 
majority  of  the  board  shall  constitute  a  quorum  for 
the  exercise  of  any  of  the  powers  or  authority  con- 
ferred by  this  Act,  and  an  award  by  a  majority  shall 
be  valid.  In  case  of  a  vacancy,  the  remaining  two 
members  of  the  board  shall  exercise  all  the  powers 
and  authority  of  the  board  until  such  vacancy  is 
filled.    Each  member  of  the  board,  including  the  said 


PROCEDURE   IN   ADMINISTERING   LAW  447 

Wisconsin 

commissioner,  shall  receive  an  annual  salary  of 
$5,000.  This  salary  shall,  as  to  the  commissioner 
of  labor  and  industrial  statistics,  be  in  full  for  his 
services  as  such  commissioner  of  labor  and  industrial 
statistics." 

"§  2394-14.  The  board  shall  organize  by  choosing 
one  of  its  members  as  chairman.  Subject  to  the 
provisions  of  this  Act,  it  may  adopt  its  own  rules 
of  procedure  and  may  change  the  same  from  time  to 
time  in  its  discretion.  The  board,  when  it  shall  deem 
it  necessary  to  expedite  its  business,  may  from  time  to 
time  employ  one  or  more  expert  examiners  for  such 
length  of  time  as  may  be  required,  such  examiners 
to  be  exempt  from  the  operation  of  chapter  363  of 
the  laws  of  1905,  and  amendatory  acts.  It  may  also 
appoint  a  secretary,  who  shall  be  similarly  exempt, 
and  such  clerical  help  as  it  may  deem  necessary.  It 
shall  fix  the  compensation  of  all  assistants  so  appointed. 
It  shall  provide  itself  with  a  seal  for  the  authenti- 
cation of  its  orders,  awards,  and  proceedings,  upon 
which  shall  be  inscribed  the  words  "Industrial 
Accident  Board — Wisconsin — Seal."  It  shall  keep 
its  office  at  the  capitol,  and  shall  be  provided  by  the 
superintendent  of  public  property  with  a  suitable 
room  or  rooms,  necessary  office  furniture,  stationery 
and  other  supplies.  The  members  of  the  board  and 
its  assistants  shall  be  entitled  to  receive  from  the  state 
their  actual  and  necessary  expenses  while  traveling 
on  the  business  of  the  board;  but  such  expenses  shall 
be  sworn  to  by  the  person  who  incurred  the  same, 
and  be  approved  by  the  chairman  of  the  board,  be- 
fore payment  is  made.  All  salaries  and  expenses 
authorized  by  this  Act  shall  be  audited  and  paid  out 
of  the  general  funds  of  the  state,  the  same  as  other 
general  state  expenses  are  audited  and  paid. 


448    Bradbury's  workmen's  compensation  law 

Wisconsin 

"§  2394-15.  Any  dispute  or  controversy  concerning 
compensation  under  this  Act,  including  any  in  which 
the  state  may  be  a  party,  shall  be  submitted  to 
said  industrial  accident  board  in  the  manner  and 
with  the  effect  provided  in  this  Act.  Every  compro- 
mise of  any  claim  for  compensation  under  this  Act 
shall  be  subject  to  be  reviewed  by,  and  set  aside, 
modified,  or  confirmed  by  the  board  upon  apphca- 
tion  made  within  one  year  from  the  time  of  such  com- 
promise." 

"§2394-16.  Upon  the  filing  with  the  board  by 
any  party  in  interest  of  an  application  in  writing 
stating  the  general  nature  of  any  claim  as  to  which 
any  dispute  or  controversy  may  have  arisen,  it  shall 
fix  a  time  for  the  hearing  thereof,  which  shall  not  be 
more  than  forty  days  after  the  filing  of  such  ap- 
plication. The  board  shall  cause  notice  of  such 
hearing,  embracing  a  general  statement  of  such  claim, 
to  be  given  to  each  party  interested,  by  service  of 
such  notice  on  him  personally  or  by  mailing  a  copy 
thereof  to  him  at  his  last  known  post-office  address  at 
least  ten  days  before  such  hearing.  Such  hearing 
may  be  adjourned  from  time  to  time  in  the  discretion 
of  the  board,  and  hearings  may  be  held  at  such  places 
as  the  board  shall  designate.  Either  party  shall  have 
the  right  to  be  present  at  any  hearing,  in  person  or 
by  attorney,  or  any  other  agent,  and  to  present  such 
testimony  as  may  be  pertinent  to  the  controversy 
before  the  board;  but  the  board  may,  with  or  with- 
out notice  to  either  party,  cause  testimony  to  be 
taken,  or  an  inspection  of  the  premises  where  the  in- 
jury occurred  to  be  had,  or  the  time  books  and  pay 
roll  of  the  employer  to  be  examined  by  any  member 
of  the  board  or  any  examiner  appointed  by  it,  and 
may  from  time  to  time  direct  any  employ^  claiming 


PROCEDURE    IN   ADMINISTERING.   LAW  449 

Wisconsin 

compensation  to  be  examined  by  a  regular  physician; 
the  testimony  so  taken,  and  the  results  of  any  such 
inspection  or  examination,  to  be  reported  to  the  board 
for  its  consideration  upon  final  hearing.  The  board, 
or  any  member  thereof,  or  any  examiner  appointed 
thereby,  shall  have  power  and  authority  to  issue 
subpoenas,  to  compel  the  attendance  of  witnesses 
or  parties,  and  the  production  of  books,  papers,  or 
records,  and  to  administer  oaths.  Obedience  to  such 
subpoenas  shall  be  enforced  by  the  circuit  court  of 
any  county." 

"§2394-17.  After  final  hearing  by  said  board,  it 
shall  make  and  file  (1)  its  findings  upon  all  the  facts 
involved  in  the  controversy,  and  (2)  its  award,  which 
shall  state  its  determination  as  to  the  rights  of  the 
parties.  Pending  the  hearing  and  determination 
of  any  controversy  before  it,  the  board  shall  have 
power  to  order  the  payment  of  such,  or  any  part 
of  the  compensation,  which  is  or  may  fall  due,  as  to 
which  the  party  from  whom  the  same  is  claimed  does 
not  deny  liability  in  good  faith  within  ten  days  after 
the  giving  of  notice  of  hearing  provided  for  in  the 
preceding  section;  and  if  the  same  shall  not  be  paid 
as  required  by  such  order,  the  facts  with  respect 
to  the  liability  therefor,  and  the  determination  of 
the  board,  as  to  the  rights  of  the  parties,  shall  be  em- 
braced in,  and  constitute  a  part  of,  its  finding  and 
award ;  and  the  board  shall  have  the  power  to  include 
in  its  award,  as  a  penalty  for  non-compHance  with 
any  such  order,  not  exceeding  twenty-five  per  cent 
of  each  amount  which  shall  not  have  been  paid  as 
directed  thereby. 

"  §  2394-18.  Either  party  may  present  a  certified 
copy  of  the  award  to  the  circuit  court  for  any  county, 
whereupon  said  court  shall,  without  notice,  render  a 

29 


450    Bradbury's  workmen's  compensation  law 

Wisconsin 

judgment  in  accordance  therewith;  which  judgment, 
until  and  unless  set  aside  as  hereinafter  provided, 
shall  have  the  same  effect  as  though  duly  rendered 
in  an  action  duly  tried  and  determined  by  said  court, 
and  shall,  with  Uke  effect,  be  entered  and  docketed." 


CHAPTER  XXV 

REVIEWING  AWARDS  BY  APPEAL 

Page 

1.  Introduction 451 

2.  Points  raised  below  only  considered  on  appeal 451 

3.  Reviewing  facts 452 

4.  Determining  adequacy  of  lump  sum  paid  under  agreement. .  453 

5.  Order  terminating  weekly  payments  not  appealed  from  is 

final 453 

6.  Dismissal  of  action  and  making  decision  in  arbitration  pro- 

ceedings   454 

7.  Award  of  costs 454 

Page  Page 

California 454     New  Hampshire 459 

Illinois 456     New  Jersey 460 

Kansas 456     Ohio 460 

Massachusetts 456     Rhode  Island 461 

Michigan 458     Washington 464 

Nevada • 459     Wisconsin 466 

1.  Introduction. 

The  question  of  the  right  to  appeal  depends  almost 
entirely  on  statutes  under  modern  procedure.  Some 
general  principles  not  covered  by  particular  statutes  are 
now  and  then  decided  by  the  courts.  The  decisions 
which  follow  have  been  selected  from  the  British  re- 
ports as  applicable  to  some  phases  of  the  compensation 
laws  of  the  American  States. 

2.  Points  raised  below  only  considered  on  appeal. 
An  appeal  by  an  emoloyer  cannot  be  entertained  on 

451 


452    Bradbury's  workmen's  compensation  law 

Reviewing  facts 

points  which  were  not  taken  in  the  court  below.    Payne 
and  Another  v.  Clifton  (1910),  3  B.  W.  C.  C.  439. 

3.  Reviewing  facts. 

Where  the  facts  are  either  found  or  admitted,  the 
only  question  to  be  decided  is  the  inference  to  be  drawn 
from  those  facts,  which  is  a  question  of  law;  and  it  is 
open  to  the  Court  of  Appeal  in  such  a  case  to  review  the 
conclusion  at  which  the  learned  County  Court  judge 
arrived,  and  to  say  whether  it  is  or  is  not  wrong  in 
point  of  law,  and  whether  or  not  he  has  misdirected 
himself.  Gane  v.  Norton  Hill  Colliery  Co.  (1909),  100 
L.  T.  979;  2  B.  W.  C.  C.  42. 

An  appeal  to  the  Court  of  Appeal  in  England  must  be 
dismissed  when  it  is  on  purely  a  question  of  fact.  Ray- 
man  V.  Fields,  No.  2  (1910),  102  L.  T.  R.  154;  3  B.  W.  C. 
C.  123. 

A  workman  was  injured  and  was  paid  compensa- 
tion for  twenty-one  weeks.  The  employers  then 
stopped  payment  and  disputed  liability  of  any  kind, 
including  even  the  occurrence  of  an  accident.  Arbitra- 
tion proceedings  were  brought  by  the  workman  and 
terminated  in  favor  of  the  employer.  Subsequently 
the  workman  applied  to  the  County  Court  judge  to 
have  the  implied  agreement  recorded.  The  judge  re- 
fused on  the  ground  that  he  had  already  found,  as  a 
fact,  no  personal  injury  had  occurred  arising  out  of  or 
in  the  course  of  the  workman's  employment  on  the 
date  alleged,  and  that  the  payments  which  had  already 
been  made  were  in  the  nature  of  a  compassionate 
allowance,  and  that  there  was  no  agreement.  On  ap- 
peal to  the  Court  of  Appeal  it  was  held  that  these  were 
findings  of  fact,  with  which  the  appellate  court  could 


REVIEWING    AWARDS   BY   APPEAL  453 

Order  terminating  weekly  payments  not  appealed  from  is  final 

not  interfere.    Turner  v.  G.  Bell  and  Sons  (1910),  4  B. 
W.  C.  C.  63. 

A  workman  with  an  injured  hand  was  advised  by  his 
own  doctor  that  he  could  not  recover  the  use  of  it,  but 
the  employers'  doctor  advised  that  he  ought  to  exercise 
it,  and  that  he  would  soon  recover  if  he  did  so.  He  did 
not  exercise  it,  and  the  employers  applied  for  a  review 
of  the  weekly  payments  on  the  ground  that  the  in- 
capacity was  due  not  to  the  injury  but  to  the  unreason- 
able conduct  of  the  man  in  not  exercising  the  hand. 
The  County  Court  judge  held  that  the  man  had  not 
behaved  unreasonably  and  dismissed  the  appUcation 
to  review.  It  was  held  on  appeal  that  the  question  was 
one  of  fact,  and  there  was  evidence  to  support  the  de- 
cision.   Moss  &  Co.  V.  Akers  (1911),  4  B.  W.  C.  C.  294. 

4.  Determining  adequacy  of  liimp  sum  paid  under 

agreement. 
An  agreement  for  the  redemption  of  a  weekly  pay- 
ment by  a  lump  sum  was  sent  to  a  registrar  to  record. 
It  appearing  inadequate,  the  registrar  under  the 
powers  given  him  by  Schedule  II  (9)  (d),  referred  it  to 
the  judge.  The  judge,  holding  that  the  sole  question> 
for  him  to  decide  was  whether  the  agreement  had  in 
fact  been  made,  declined  to  decide  the  question  of 
adequacy.  It  was  held  on  appeal  that  the  case  must  go 
back  for  the  question  of  adequacy  to  be  decided. 
Owners  of  the  Steamship  "Segura^^  v.  Blampied  (1911), 
4  B.  W.  C.  C.  192. 

5.  Order  terminating  weekly  pa3mients  not  appealed 

from  is  final. 
An  order  terminating  weekly  payments  is,  unless 


454    BRADBtmy's  workmen's  compensation  law 

California 

appealed  from,  final,  and  the  original  agreement  or 
order  is  not  then  the  subject  of  review.  Nicholson  v. 
Piper  (1906),  96  L.  T.  75;  9  W.  C.  C.  123,  aff'd,  House 
of  Lords  (1907),  A.  C.  215;  97  L.  T.  119;  9  W.  C.  C. 
128. 

6.  Dismissal  of  action  and  making  decision  in  arbi- 

tration proceedings. 

Where  in  an  action  under  the  Employers'  Liability 
Act  the  judge  dismissed  the  action  and  then  came  to 
the  conclusion  that  no  compensation  was  payable  under 
the  Workmen's  Compensation  Act,  it  was  held  that 
an  appeal  could  be  taken  from  his  action  as  a  judge  and 
that  he  did  not  deal  with  the  case  as  an  arbitrator 
under  the  Employers'  Liability  Act.  Granick  v.  British 
Columbia  Sugar  Co.  (1910),  15  B.  C.  R.  452;  4  B.  W. 
C.  C.  452. 

7.  Award  of  costs. 

If  a  judge  grants  a  party  costs  they  must  be  taxed, 
and  when  an  order  as  to  costs  is  made  part  of  an  award, 
an  appeal  lies  to  the  Court  of  Appeal  in  respect  to  such 
order.  Beadle  and  Others  v.  Owners  of  S.  S.  "  Nicholas '^ 
(1909),  101  L.  T.  586;  3  B.  W.  C.  C.  102. 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  18.  The  findings  of  fact  made  by  the  board  act- 
ing within  its  powers,  shall,  in  the  absence  of  fraud,  be 
conclusive,  and  the  award,  whether  judgment  has  been 
rendered  thereon  or  not,  shall  be  subject  to  review 
only  in  the  manner  and  upon  the  grounds  following: 
within  thirty  days  from  the  date  of  the  award,  any 


REVIEWING  AWARDS  BY  APPEAL  455 

California 

party  aggrieved  thereby  may  file  with  the  board  an 
application  in  writing  for  a  review  of  such  award, 
stating  generally  the  grounds  upon  which  such  review 
is  sought;  within  thirty  days  thereafter  the  board 
shall  cause  all  documents  and  papers  on  file  in  the 
matter,  and  a  transcript  of  all  testimony  which  may 
have  been  taken  therein,  to  be  transmitted  with  their 
findings  and  award  to  the  clerk  of  the  superior  court 
of  that  county  or  city  and  county  wherein  the  accident 
occurred;  such  application  for  a  review  may  thereupon 
be  brought  on  for  hearing  before  said  court  upon  such 
record  by  either  party  on  ten  days'  notice  to  the  other, 
subject,  however,  to  the  provisions  of  law,  for  a  change 
of  the  place  of  trial  or  the  calling  of  another  judge. 
Upon  such  hearing  the  court  may  confirm  or  set  aside 
such  award,  and  any  judgment  which  may  theretofore 
have  been  rendered  thereon,  but  the  same  shall  be  set 
aside  only  upon  the  following  grounds: 

"  (1)  That  the  board  acted  without  or  in  excess  of 
its  powers. 

"  (2)  That  the  award  was  procured  by  fraud. 

"  (3)  That  the  findings  of  fact  by  the  board  do  not 
support  the  award. 

"§  19.  Upon  the  setting  aside  of  any  award  the 
court  may  recommit  the  controversy  and  remand  the 
record  in  the  case  to  the  board,  for  further  hearing  or 
proceedings,  or  it  may  enter  the  proper  judgment  upon 
the  findings,  as  the  nature  of  the  case  shall  demand. 
An  abstract  of  the  judgment  entered  by  the  trial  court 
upon  the  review  of  any  award  shall  be  made  by  the 
clerk  thereof  upon  the  docket  entry  of  any  judgment 
which  may  theretofore  have  been  rendered  upon  such 
award,  and  transcripts  of  such  abstract  may  thereupon 
be  obtained  for  like  entry  upon  the  dockets  of  the 
courts  of  other  counties,  or  city  and  county. 


456    bhadbury's  workmen's  compensation  law 

Massachusetts 

*'§  20.  Any  party  aggrieved  by  a  judgment  entered 
upon  the  review  of  any  award,  may  appeal  therefrom 
within  the  time  and  in  the  manner  provided  for  an 
appeal  from  the  orders  of  the  superior  court;  but  all 
such  appeals  shall  be  placed  on  the  calendar  of  the 
supreme  court  and  brought  to  a  hearing  in  the  same 
manner  as  criminal  causes  on  such  calendar." 

ILLINOIS 

(L.  1911,  c.  000) 

Appeals  may  be  taken  to  the  Circuit  Court  from 
decisions  of  arbitrators.  §  10.  See  Chapter  XXIV, 
ante,  page  411. 

KANSAS 

(L.  1911,  c.  218) 

There  does  not  seem  to  be  any  provision  in  the  Act 
for  an  appeal  from  an  award  by  arbitrators  but  the 
ordinary  appeals  may  be  taken  from  judgments  entered 
after  a  trial  in  court. 

See  §§  29  and  32,  in  Chapter  XXVI,  post,  pages  487- 
488  for  provision  as  to  modification  of  agreement  or 
award. 

MASSACHUSETTS 

(L.  1911,  0.  751) 

After  a  decision  by  arbitrators  either  party  may  ap- 
peal within  seven  days  (Part  III,  §  7)  to  the  Industrial 
Accident  Board. 

Part  III,  §§  10  and  11  provide: 

"§  10.  If  a  claim  for  a  review  is  filed,  as  provided 
in  Part  III,  section  seven,  the  board  shall  hear  the 


REVIEWING   AWARDS   BY   APPEAL  457 

Massachusetts 

parties  and  may  hear  evidence  in  regard  to  any  or  all 
matters  pertinent  thereto  and  may  revise  the  de- 
cision of  the  committee  in  whole  or  in  part,  or  may 
refer  the  matter  back  to  the  committee  for  further 
findings  of  fact,  and  shall  file  its  decision  with  the 
records  of  the  proceedings  and  notify  the  parties 
thereof.  No  party  shall  as  a  matter  of  right  be  en- 
titled to  a  second  hearing  on  any  question  of  fact. 

"§  11.  Any  party  in  interest  may  present  certified 
copies  of  an  order  or  decision  of  the  board,  a  decision 
of  an  arbitration  committee  from  which  no  claim  for 
review  has  been  filed  within  the  time  allowed  therefor, 
or  a  memorandum  of  agreement  approved  by  the 
board,  and  all  papers  in  connection  therewith,  to  the 
superior  court  for  the  county  in  which  the  injury  oc- 
curred or  for  the  county  of  Suffolk,  whereupon  said 
court  shall  render  a  decree  in  accordance  therewith 
and  notify  the  parties.  Such  decree  shall  have  the 
same  effect  and  all  proceedings  in  relation  thereto 
shall  thereafter  be  the  same  as  though  duly  rendered 
in  a  suit  duly  heard  and  determined  by  said  court, 
except  that  there  shall  be  no  appeal  therefrom  upon 
questions  of  fact,  or  where  the  decree  is  based  upon  a 
decision  of  an  arbitration  committee  or  a  memo- 
randum of  agreement,  and  that  there  shall  be  no 
appeal  from  a  decree  based  upon  an  order  or  decision 
of  the  board  which  has  not  been  presented  to  the 
court  within  ten  days  after  the  notice  of  the  fiKng 
thereof  by  the  board.  Upon  the  presentation  to  it  of 
a  certified  copy  of  a  decision  of  the  industrial  acci- 
dent board  ending,  diminishing  or  increasing  a  weekly 
payment  under  the  provisions  of  Part  III,  sec- 
tion twelve,  the  court  shall  revoke  or  modify  the 
decree  to  conform  to  such  decision."  (As  amended 
by  L.  1912,  c.  571.) 


458     BRADBURY^S  WORKMEN'S  COMPENSATION  LAW 

Michigan 


MICHIGAN 

(L.  1912,  c.  000) 

"Part  III,  §  11.  If  a  claim  for  review  is  filed,  as 
provided  in  part  three,  section  eight,  the  industrial 
accident  board  shall  promptly  review  the  decision  of 
the  committee  of  arbitration  and  such  records  as  may 
have  been  kept  of  its  hearings,  and  shall  also  if  desired 
hear  the  parties,  together  with  such  additional  ev- 
idence as  they  may  wish  to  submit,  and  file  its  de- 
cision therein  with  the  records  of  such  proceedings. 
Such  review  and  hearing  may  be  held  in  its  office  at 
Lansing  or  elsewhere  as  the  board  shall  deem  advis- 
able. 

"§  12.  The  findings  of  fact  made  by  said  industrial 
accident  board  acting  within  its  powers,  shall,  in  the 
absence  of  fraud,  be  conclusive,  but  the  supreme 
court  shall  have  power  to  review  questions  of  law  in- 
volved in  any  final  decision  or  determination  of  said 
industrial  accident  board:  Provided,  That  application 
is  made  by  the  aggrieved  party  within  thirty  days 
after  such  determination  by  certiorari,  mandamus  or 
by  any  other  method  permissible  under  the  rules  and 
practice  of  said  court  or  the  laws  of  this  state,  and  to 
make  such  further  orders  in  respect  thereto  as  justice 
may  require. 

"§  13.  Either  party  may  present  a  certified  copy 
of  the  decision  of  such  industrial  accident  board  ap- 
proving agreements  of  settlement  as  provided  in  part 
three,  section  five  hereof,  or  of  the  decision  of  such 
committee  of  arbitration  when  no  claim  for  review  is 
made  as  provided  in  part  three,  section  eight,  or  of 
the  decision  of  such  industrial  accident  board  when  a 
claim  for  review  is  filed  as  provided  in  part  three, 


ilEVlEWlNG  AWARDS  3BV  APPEAL  459 

New  Hampshire 

section  eleven,  providing  for  payment  of  compensa- 
tion under  this  act,  to  the  circuit  court  for  the  county 
in  which  such  accident  occurred,  whereupon  said 
court  shall,  without  notice,  render  a  judgment  in  ac- 
cordance therewith  against  said  employer  and  also 
against  any  insurance  company  carrying  such  risk 
under  the  provisions  of  this  act;  which  judgment, 
until  and  unless  set  aside  shall  have  the  same  effect 
as  though  duly  rendered  in  an  action  duly  tried  and 
determined  by  said  court,  and  shall,  with  like  effect, 
be  entered  and  docketed." 

NEVADA 

(L.  1911,  c.  183) 

Compensation  is  enforced  in  Nevada  by  an  action 
in  court.  Either  party  can  appeal  the  same  as  in  any 
other  action.    §  9.    See  Chapter  XXIV,  ante,  page  427. 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

The  decision  of  the  Commissioner  of  Labor  as  to 
the  financial  ability  of  any  employer  to  comply  with 
the  act,  and  as  to  requiring  such  employer  to  give  a 
bond  may  be  reviewed  by  any  justice  of  the  Superior 
Court  upon  petition.  See  §  3  in  Chapter  II,  ante, 
page  155. 

Disputes  arising  under  the  Act  are  determined  by 
the  court.  See  §  9,  in  Chapter  XXIV,  ante,  page  427. 
Such  determinations  may  be  reviewed  in  the  same  man- 
ner as  other  decisions  by  the  courts.  Otherwise  there 
is  no  special  provision  in  the  act  relative  to  reviewing 
determinations  under  the  statute. 


460    Bradbury's  workmen's  compensation  law 

Ohio 


NEW  JERSEY 

(L.  1911,  c.  95) 

Paragraph  18,  of  §  2,  (Chapter  XXIV,  ante,  page 
428)  provides  that  in  case  of  dispute  the  determina- 
tion of  the  judge  of  the  Court  of  Common  Pleas, 
''shall  be  conclusive  and  binding."  Paragraph  20 
of  the  same  section  (Chapter  XXIV,  ante,  page  429) 
provides,  however,  "that  nothing  herein  contained 
shall  be  construed  as  limiting  the  jurisdiction  of  the 
Supreme  Court  to  review  questions  of  law  by  certi- 
orari." It  appears  therefore  that  the  only  method 
of  review  under  the  New  Jersey  Act  is  by  certiorari 
to  the  Supreme  Court. 

OHIO 

(L.  1911,  c.  000) 

"§  36.  Decisions  of  Board.  The  Board  shall  have 
full  power  and  authority  to  hear  and  determine  all 
questions  within  its  jurisdiction,  and  its  decision  there- 
on shall  be  final. 

"Provided,  however,  in  case  the  final  action  of  such 
Board  denies  the  right  of  the  claimant  to  participate 
at  all  in  such  fund  on  the  ground  that  the  injury  was 
self-inflicted  or  on  the  ground  that  the  accident  did 
not  arise  in  the  course  of  employment,  or  upon  any 
other  ground  going  to  the  basis  of  the  claimant's 
right,  then  the  claimant  within  thirty  (30)  days 
after  the  notice  of  the  final  action  of  such  Board  may, 
by  filing  his  appeal  in  the  common  pleas  court  of  the 
county  wherein  the  injury  was  inflicted,  be  entitled 
to  a  trial  in  the  ordinary  way,  and  be  entitled  to  a 
jury  if  he  demands  it.    In  such  a  proceeding,  the  pros- 


f 


REVIEWING    AWARDS   BY   APPEAL  461 

Rhode  Island 

ecuting  attorney  of  the  county,  without  additional 
compensation,  shall  represent  the  State  Liability 
Board  of  Awards,  and  he  shall  be  notified  by  the  clerk 
forthwith  of  the  filing  of  such  appeal. 

"Within  thirty  days  after  filing  his  appeal,  the 
appellant  shall  file  a  petition  in  the  ordinary  form 
against  such  board  as  defendant  and  further  pleadings 
shall  be  had  in  said  cause  according  to  the  rules  of 
civil  procedure,  and  the  court,  or  the  jury,  under  the 
instructions  of  the  court,  if  a  jury  is  demanded,  shall 
determine  the  right  of  the  claimant;  and,  if  they  de- 
termine the  right  in  his  favor,  shall  fix  his  compensa- 
tion within  the  limits  and  under  the  rules  prescribed 
in  this  act;  and  any  final  judgment  so  obtained  shall 
be  paid  by  the  State  Liability  Board  of  Awards  out  of 
the  state  insurance  fund  in  the  same  manner  as  such 
awards  are  paid  by  such  board. 

"The  costs  of  such  proceeding  including  a  reason- 
able attorney's  fee  to  the  claimant's  attorney  to  be 
fixed  by  the  trial  judge,  shall  be  taxed  against  the 
unsuccessful  party.  Either  party  shall  have  the  right 
to  prosecute  error  as  in  the  ordinary  civil  cases." 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  Ill,  §  7.  Appeal.  Any  person  aggrieved  by 
the  final  decree  of  the  superior  court  under  this  act 
may  appeal  to  the  supreme  court  upon  any  question 
of  law  or  equity  decided  adversely  to  the  appellant 
by  said  final  decree  or  by  any  proceeding  or  ruling 
prior  thereto  appearing  of  record,  the  appellant  hav- 
ing first  had  his  objections  noted  to  any  adverse  rul- 
ings made  during  the  progress  of  the  trial  at  the  time 
such  rulings  were  made,  if  made  in  open  court  and 
not  otherwise  of  record. 


462    Bradbury's  workmen's  compensation  law 

Rhode  Island 

The  appellant  shall  take  the  following  steps: 

"  (a)  Within  ten  days  after  entry  of  said  final  de- 
cree he  shall  file  a  claim  of  appeal  and,  if  a  transcript 
of  the  testimony  and  rulings  or  any  part  thereof  be 
desired,  a  written  request  therefor. 

"  (6)  Within  such  time  as  the  justice  of  the  superior 
court  who  heard  the  petition,  or,  in  case  of  his  in- 
ability to  act  from  any  cause  within  such  time  as  any 
other  justice  thereof  shall  fix,  whether  by  original 
fixing  of  the  time,  or  by  extension  thereof,  or  by  a 
new  fixing  after  any  expiration  thereof,  the  appellant 
shall  file  reasons  of  appeal  stating  specifically  all  the 
questions  of  law  or  equity  decided  adversely  to  him 
which  he  desires  to  include  in  his  reasons  of  appeal, 
together  with  a  transcript  of  as  much  of  the  testimony 
and  rulings  as  may  be  required.  The  supreme  court 
may  allow  amendments  of  said  reasons  of  appeal. 
Upon  the  filing  of  said  reasons  of  appeal  and  transcript, 
the  clerk  of  the  superior  court  shall  present  the  trans- 
script  to  the  justice  who  heard  the  cause  for  allowance. 
The  justice  after  hearing  and  examination,  shall 
restore  the  transcript  to  the  files  of  the  clerk  with  a 
certificate  of  his  action  thereon  made  within  twenty 
days  after  filing  the  transcript,  unless  the  twentieth 
day  shall  fall  in  vacation,  in  which  event  the  certificate 
may  be  filed  at  any  time  before  the  first  Monday  in 
the  following  month  of  October. 

"If  the  transcript  be  not  allowed  by  the  justice 
who  heard  the  cause  within  the  time  prescribed,  or 
objection  to  his  allowance  be  made  by  any  party,  the 
correctness  of  the  transcript  may  be  determined  by 
the  supreme  court  by  petition  filed  within  thirty  days 
after  filing  the  transcript,  unless  the  thirtieth  day 
shall  fall  in  vacation,  in  which  event  the  correctness 
of  the  transcript  may  be  determined  by  petition  filed 


REVIEWING   AWARDS   BY   APPEAL  463 

Rhode  Island 

on  or  before  the  tenth  day  after  the  first  Monday  in 
the  following  month  of  October.  In  all  other  respects 
than  in  time  of  fihng  the  same  course  shall  be  followed 
as  provided  in  section  21  of  Chapter  298  of  the  Gen- 
eral Laws  for  establishing  the  truth  of  exceptions. 

"§8.  Certifying  papers.  Upon  the  restoration  of 
the  transcript  to  the  files,  or,  if  there  be  no  transcript, 
then  upon  the  filing  of  the  reasons  of  appeal,  the  clerk 
of  the  superior  court  shall  certify  the  cause  and  all 
papers  to  the  supreme  court. 

"§  9.  Appeal  suspends  decree.  The  claim  of  an  ap- 
peal shall  suspend  the  operation  of  the  decree  appealed 
from,  but,  in  case  of  default  in  taking  the  procedure 
required,  such  suspension  shall  cease,  and  the  superior 
court  upon  motion  of  any  party  shall  proceed  as  if  no 
claim  of  appeal  had  been  made,  unless  it  be  made  to 
appear  to  the  superior  court  that  the  default  no  longer 
exists. 

"  §  10.  Motion  day.  Any  court  day  in  the  supreme 
court  shall  be  a  motion  day  for  the  purpose  of  hearing 
a  motion  to  assign  the  appeal  for  hearing. 

"§  11.  Decision.  The  supreme  court  after  hearing 
any  appeal  shall  determine  the  same,  and  affirm,  re- 
verse or  modify  the  decree  appealed  from,  and  may 
itself  take,  or  cause  to  be  taken  by  the  superior  court, 
such  further  proceedings  as  shall  seem  just.  If  a  new 
decree  shall  be  necessary,  it  shall  be  framed  by  the 
supreme  court  for  entry  by  the  superior  court.  There- 
upon the  cause  shall  be  remanded  to  the  superior  court 
for  such  further  proceedings  as  shall  be  required. 

"§  12.  Execution.  No  process  for  the  execution  of 
a  final  decree  of  the  superior  court  from  which  an  ap- 
peal may  be  taken  shall  issue  until  the  expiration  of 
ten  days  after  the  entry  thereof,  unless  all  parties 
against  whom  such  decree  is  made  waive  an  appeal 


464    Bradbury's  workmen's  compensation  law 

. i-, 

Washington 

by  a  writing  filed  with  the  clerk  or  by  causing  an  entry 
thereof  to  be  made  on  the  docket. 

"  13.  Questions  of  law.  If,  in  the  course  of  the  pro- 
ceedings in  any  cause,  any  question  of  law  shall  arise 
which  in  the  opinion  of  the  superior  court  is  of  such 
doubt  and  importance,  and  so  affects  the  merits  of  the 
controversy,  that  it  ought  to  be  determined  by  the 
supreme  court  before  further  proceedings,  the  su- 
perior court  may  certify  such  question  to  the  supreme 
court  for  that  purpose,  and  stay  all  further  proceed- 
ings except  such  as  are  necessary  to  preserve  the 
rights  of  the  parties." 

WASHINGTON 

(L.  1911,  c.  74) 

"§20.  Court  Review.  Any  employer,  workman, 
beneficiary,  or  person  feeling  aggrieved  at  any  de- 
cison  of  the  department  affecting  his  interests  under 
this  act  may  have  the  same  reviewed  by  a  proceeding 
for  that  purpose,  in  the  nature  of  an  appeal,  initiated 
in  the  superior  court  of  the  county  of  his  residence 
(except  as  otherwise  provided  in  subdivision  (1)  of 
section  numbered  5)  in  so  far  as  such  decision  rests 
upon  questions  of  fact,  or  of  the  proper  application 
of  the  provisions  of  this  act,  it  being  the  intent  that 
matters  resting  in  the  discretion  of  the  department 
shall  not  be  subject  to  review.  The  proceedings  in 
every  such  appeal  shall  be  informal  and  summary,  but 
full  opportunity  to  be  heard  shall  be  had  before  judg- 
ment is  pronounced.  No  such  appeal  shall  be  enter- 
tained unless  notice  of  appeal  shall  have  been  served 
by  mail  or  personally  upon  some  member  of  the  com- 
mission within  twenty  days  following  the  rendition 
of  the  decision  appealed  from  and  communication 


REVIEWING   AWARDS   BY   APPEAL  465 

Washington 

thereof  to  the  person  affected  thereby.  No  bond 
shall  be  required,  except  that  an  appeal  by  the  em- 
ployer from  a  decision  of  the  department  mider  section 
9  shall  be  ineffectual  unless,  within  five  days  following 
the  service  of  notice  thereof,  a  bond,  with  surety 
satisfactory  to  the  court,  shall  be  filed,  conditioned  to 
perform  the  judgment  of  the  court.  Except  in  the 
case  last  named  an  appeal  shall  not  be  a  stay.  The 
caUing  of  a  jury  shall  rest  in  the  discretion  of  the 
court  except  that  in  cases  arising  under  sections  9,  15 
and  16  either  party  shall  be  entitled  to  a  jury  trial 
upon  demand.  It  shall  be  unlawful  for  any  attorney 
engaged  in  any  such  appeal  to  charge  or  receive  any 
fee  therein  in  excess  of  a  reasonable  fee,  to  be  fixed 
by  the  court  in  the  case,  and,  if  the  decision  of  the  de- 
partment shall  be  reversed  or  modified,  such  fee  and 
the  fees  of  medical  and  other  witnesses  and  the  costs 
shall  be  payable  out  of  the  administration  fund,  if 
the  accident  fund  is  affected  by  the  Htigation.  In 
other  respects  the  practice  in  civil  cases  shall  apply. 
Appeal  shall  he  from  the  judgment  of  the  superior 
court  as  in  other  civil  cases.  The  attorney  general 
shall  be  the  legal  advisor  of  the  department  and  shall 
represent  it  in  all  proceedings,  whenever  so  requested 
by  any  of  the  commissioners.  In  all  court  proceedings 
under  or  pursuant  to  this  act  the  decision  of  the  de- 
partment shall  be  prima  facie  correct,  and  the  burden 
of  proof  shall  be  upon  the  party  attacking  the  same." 
"§25.  Medical  Witnesses.  Upon  the  appeal  of  any 
workman  from  any  decision  of  the  department  af- 
fecting the  extent  of  his  injuries  or  the  progress  of 
the  same,  the  court  may  appoint  not  to  exceed  three 
physicians  to  examine  the  physical  condition  of  the 
appellant,  who  shall  make  to  the  court  their  report 
thereon,  and  they  may  be  interrogated  before  the 
30 


466    Bradbury's  workmen's  compensation  law 

Wisconsin 

court  by  or  on  behalf  of  the  appellant  in  relation  to 
the  same.  The  fee  of  each  shall  be  fixed  by  the  court, 
but  shall  not  exceed  ten  dollars  per  day  each." 

WISCONSIN 

(L.  1911,  c.  50) 

"§2394-19.  The  findings  of  fact  made  by  the 
board  acting  within  its  powers  shall,  in  the  absence 
of  fraud,  be  conclusive;  and  the  award,  whether  judg- 
ment has  been  rendered  thereon  or  not,  shall  be  sub- 
ject to  review  only  in  the  manner  and  upon  the 
grounds  following:  Within  twenty  days  from  the  date 
of  the  award,  any  party  aggrieved  thereby  may  com- 
mence, in  the  circuit  court  for  Dane  county,  an  action 
against  the  board  for  the  review  of  such  award,  in 
which  action  the  adverse  party  shall  also  be  made 
defendant.  In  such  action  a  complaint,  which  shall 
state  the  grounds  upon  which  a  review  is  sought,  shall 
be  served  with  the  summons.  Service  upon  the  sec- 
retary of  the  board,  or  any  member  of  the  board,  shall 
be  deemed  completed  service.  The  board  shall  serve 
its  answer  within  twenty  days  after  the  service  of  the 
complaint,  and,  within  the  like  time,  such  adverse 
party  shall,  if  he  so  desires,  serve  his  answer  to  said 
complaint.  With  its  answer,  the  board  shall  make 
return  to  said  court  of  all  documents  and  papers  on 
file  in  the  matter,  and  of  all  testimony  which  may 
have  been  taken  therein,  and  of  its  findings  and 
award.  Said  action  may  thereupon  be  brought  on  for 
■  hearing  before  said  court  upon  such  record  by  either 
party  on  ten  days'  notice  to  the  other;  subject,  how- 
ever, to  the  provisions  of  law  for  a  change  of  the  place 
of  trial  or  the  calUng  in  of  another  judge.  Upon  such 
hearing,  the  court  may  confirm  or  set  aside  such  award; 
and  any  judgment  which  may  theretofore  have  been 


REVIEWING   AWARDS   BY   APPEAL  467 

Wisconsin 

rendered  thereon;  but  the  same  shall  be  set  aside  only 
upon  the  following  grounds: 

1.  That  the  board  acted  without  or  in  excess  of  its 
powers. 

2.  That  the  award  was  procured  by  fraud. 

3.  That  the  findings  of  fact  by  the  board  do  not 
support  the  award. 

"§  2394-20.  Upon  the  setting  aside  of  any  award 
the  court  may  recommit  the  controversy  and  remand 
the  record  in  the  case  to  the  board,  for  further  hearing 
or  proceedings;  or  it  may  enter  the  proper  judgment 
upon  the  findings,  as  the  nature  of  the  case  shall 
demand.  An  abstract  of  the  judgment  entered  by  the 
trial  court  upon  the  review  of  any  award  shall  be 
made  by  the  clerk  thereof  upon  the  docket  entry  of 
any  judgment  which  may  theretofore  have  been  ren- 
dered upon  such  award,  and  transcripts  of  such  ab- 
stract may  thereupon  be  obtained  for  like  entry  upon 
the  dockets  of  the  courts  of  other  counties." 

"  §  2394-21.  Said  board,  or  any  party  aggrieved  by 
a  judgment  entered  upon  the  review  of  any  award, 
may  appeal  therefrom  within  the  time  and  in  the 
manner  provided  for  an  appeal  from  the  orders  of  the 
circuit  court;  but  all  such  appeals  shall  be  placed  on 
the  calendar  of  the  supreme  court  and  brought  to  a 
hearing  in  the  same  manner  as  state  causes  on  such 
calendar." 


CHAPTER  XXVI 

MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL 

Page 

1.  Circumstances  must  have  changed  to  justify  review 469 

2.  Res  adjudicata 469 

3.  New  medical  evidence  on  review  to  show  changed  circum- 

stances  s 471 

4.  Terms  of  application  for  review  binding  on  applicant 471 

5.  Modifying  award  from  a  date  earlier  than  the  date  of  the 

application  to  modify 471 

6.  Terminating  compensation  payments 471 

7.  Question  of  recovery  from  injury  is  one  of  fact 473 

8.  Increasing  age  as  affecting  disability 474 

9.  Refusal  to  submit  to  surgical  operation 474 

10.  Reducing  payments  by  reason  of  ability  to  do  light  work .  .  475 

11.  InabiUty  to  obtain  light  work 476 

12.  Offering  suitable  employment 477 

13.  Reducing  payments  after  offer  and  refusal  of  light  work . .  477 

14.  Failure  of  workman  to  get  or  attempt  to  get  light  work . . .  478 

15.  Disability  from  disease  following  injury 479 

16.  Workman  permanently  injured  but  suffering  increased  dis- 

ability from  disease 479 

17.  Rolling-mill  hand  able  to  work  with  glasses  when  vision 

impaired 480 

18.  Disability  due  to  idleness  and  softened  muscles 480 

19.  Disability  due  to  brooding  over  injury 481 

20.  InabiUty  to  get  employment  due  to  slackness  of  work.  .  .  .  482 

21.  Infant  earning  as  much  after  as  he  did  before  accident. .  .  482 

22.  Probable  earnings  of  infant  in  different  grade 482 

23.  Profits  of  business  enterprise  as  affecting  right  to  reduce 

compensation 483 

24.  Apportioning  loss  between  employer  and  employ^ 484 

25.  Allowance  for  expenses  when  work  furnished  away  from 

home 484 

468 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      469 
Res  ad  judicata 

26.  Diminishing  payments;  burden  of  proof 484 

27.  Keeping  proceeding  alive  by  payment  of  nominal  sum. . . .  486 

28.  Recovering  overpa3Tnents  of  compensation 486 

Page  Page 

California 487     New  Hampshire 489 

Illinois 487     New  Jersey 490 

Kansas 487     Ohio 490 

Massachusetts 488     Rhode  Island 490 

Michigan 489     Washington 491 

Nevada 489     Wisconsin 492 


1.  Circumstances  must  have  changed  to  justify  re- 

view. 
Weekly  payments  can  only  be  reviewed  if  the  cir- 
cumstances have  altered  since  the  last  award  was 
made;  otherwise  the  review  would  amount  to  a  re- 
hearing of  the  arbitration,  which  is  not  permissible. 
Crossfield  &  Sons  v.  Tanian,  82  L.  T.  813;  2  W.  C.  C. 
141. 

2.  Res  adjudicata. 

On  an  application  to  review  the  employer  is  entitled 
to  introduce  evidence  as  to  the  physical  condition  of 
the  employe,  even  though  it  conflicts  with  the  former 
finding  as  to  such  physical  condition  on  the  date  of  the 
finding,  as  the  determination  of  the  County  Court 
judge,  as  to  the  physical  condition  of  the  workman,  is 
not  res  adjudicata.  Mead  v.  Lockhart  (1909),  2  B.  W. 
C.  C.  398. 

Where  a  workman  received  compensation  for  a  while 
and  then  the  amount  was  reduced  and  he  subsequently 
appUed  for  an  increase,  on  the  ground  that  although 
his  finger  which  was  injured  was  in  the  same  condition 


470      BRADBURY^S  WORKMEN'S  COMPENSATION   LAW 
Res  ad  judicata 

as  at  the  date  of  the  last  review,  the  fact  that  he  had 
made  several  applications  for  work  which  had  been 
refused  on  account  of  his  condition,  showed  that  his 
earning  capacity  was  in  fact  reduced  as  a  result  of  the 
accident.  It  was  held  that  the  last  review,  by  which 
the  compensation  was  reduced,  was  not  res  adjudicata, 
as  against  the  workman,  and  that  an  order  of  the 
County  Court  judge,  increasing  the  compensation, 
should  be  sustained.  Radcliffe  v.  The  Pacific  Steam 
Navigation  Co.  (1910),  102  L.  T.  206;  3  B.  W.  C.  C. 
185.  In  the  last-mentioned  case  it  was  held  that  cer- 
tain matters  became  res  adjudicata  on  such  a  review; 
for  example,  the  fact  that  the  workman  was  an  em- 
ploy^; that  he  was  injured  in  the  course  of  his  employ- 
ment; but  that  the  same  doctrine  did  not  apply  to  the 
amount  of  compensation,  because  the  statute  made 
this  subject  to  review  by  subsequent  proceedings. 

A  collier  lost  the  sight  of  one  eye  by  accident  and 
compensation  was  paid  for  two  and  a  half  years  un- 
der an  agreement.  Another  agreement  reducing  the 
amount  of  compensation  was  then  entered  into  in 
March,  1908.  In  January,  1909,  the  employers  applied 
to  further  reduce  the  compensation.  The  workman 
contended  that  the  amount  of  his  incapacity  had  been 
settled  once  and  for  all  by  the  agreement  of  March, 
1908.  It  was  held  that  the  man  was  fit  for  his  work  as 
a  miner,  and  the  judge  reduced  the  compensation  to 
one  penny  a  week.  It  was  held  on  appeal  that  the 
evidence  before  the  County  Court  judge  was  sufficient 
to  sustain  the  decision,  and  that  the  workman's  con- 
tention that  the  agreement  of  March,  1908,  was  res 
adjudicata  could  not  be  sustained.  The  Cawdor  and 
Garnant  Collieries  v.  Jones  (1909),  3  B.  W.  C.  C.  59.. 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      471 

Terminating  compensation  payments 

3.  New  medical  evidence  on  review  to  show  changed 

circumstances. 
On  review  of  an  award  medical  evidence  on  new 
observations  and  tests  is  admissible  to  show  a  change 
of  circumstances.    Sharman  v.  Holliday  &  Greenwood 
(1903),  90  L.  T.  46;  6  W.  C.  C.  147. 

4.  Terms  of  application  for  review  binding  on  ap- 

plicant. 
On  an  appHcation  by  employers  to  review  a  weekly 
payment  the  court  is  bound  by  the  terms  of  the  em- 
ployer's application  and  has  no  jurisdiction  to  find  that 
the  workman  has  recovered  from  the  accident  at  a  time 
previous  to  that  suggested  in  the  application.  Upper 
Forest  and  Western  Steel  and  Tinplate  Co.  v.  Thomas 
(1909),  2  B.  W.  C.  C.  414. 

5.  Modifying  award  from  a  date  earlier  than  the 

date  of  the  application  to  modify. 

On  an  application  to  review  a  weekly  payment  the 
arbitrator  may  vary  the  weekly  payments  from  the 
date  of  the  apphcation,  but  not  from  an  earlier  date. 
Donaldson  Brothers  v.  Cowan  (1909),  46  Scotch  L.  R. 
920;  2  B.  W.  C.  C.  390. 

On  an  application  to  review  compensation  it  is  not 
competent  for  the  County  Court  judge  to  go  outside  of 
that  application  and  to  make  an  order  terminating 
liability  from  an  antecedent  date.  Charing  Cross, 
Euston  and  Hampstead  Ry.  Co.  v.  Boots  (1909),  101  L. 
T.  53;  2  B.  W.  C.  C.  385. 

6.  Terminating  compensation  pa3rments. 

A  workman  was  injured,  and  liability  was  admitted, 


472    Bradbury's  workmen's  compensation  law 

Terminating  compensation  payments 

and  compensation  agreed  upon  during  incapacity. 
Subsequently  notice  was  given  by  the  employer  of  his 
intention  to  terminate  the  weekly  payments,  on  the 
ground  that  the  workman  had  recovered,  and  a  joint 
application  was  made  for  a  reference  to  a  medical  ref- 
eree, in  accordance  with  the  statute.  The  referee  cer- 
tified that  the  man  was  fit  for  work.  The  workman 
then  filed  an  application  for  arbitration,  at  the  hearing 
of  which  the  County  Court  judge,  on  the  medical  ev- 
idence, terminated  the  employer's  liability.  It  was 
held  that  the  judge  had  jurisdiction  to  make  such  an 
order,  and  was  not  bound  to  make  a  nominal  award  of 
compensation,  containing  a  declaration  of  liability. 
Cranfield  v.  Ansell  (1910),  4  B.  W.  C.  C.  57. 

By  an  accident  a  workman  lost  one  finger  and  re- 
ceived permanent  injury  to  two  other  fingers,  and  was 
awarded  4s.  7d.  a  week  compensation.  On  an  applica- 
tion to  review  the  weekly  payments,  the  County  Court 
judge,  on  the  evidence,  made  an  order  terminating  the 
employers'  liability.  The  workman  requested  that  the 
weekly  compensation  be  reduced  to  Id.  a,  week,  to 
keep  alive  his  right  to  apply  for  a  further  review  in  the 
event  of  futiue  loss,  but  the  Court  of  Appeal  held  that 
the  question  decided  by  the  court  below  was  one  of 
fact  with  which  the  Court  of  Appeal  could  not  interfere. 
Emmerson  v.  Donkin  and  Co.  (1910),  4  B.  W.  C.  C.  74. 

Where  a  workman  has  returned  to  work  and  is  re-- 
ceiving  the  same  wages  that  he  did  before  the  accident 
from  his  old  employer  and  the  compensation  payments 
have  been  reduced  to  a  nominal  amount,  it  was  held,  on 
an  application  to  terminate  the  payment  entirely,  that 
the  question  is  not  whether  the  man's  employers  are 
paying  him  or  should  pay  him  at  the  time  of  the  appli- 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      473 

Question  of  recovery  from  injury  is  one  of  fact 

cation  the  same  wages  as  before  the  accident,  but 
whether  the  man  is  left  in  such  position  that  in  the 
open  market  his  earning  capacity  may  in  the  future  be 
less  than  it  was  before  the  accident  as  the  result  of  the 
accident.  Birmingham  Cabinet  Manufacturing  Co.  v. 
Dudley  (1910),  102  L.  T.  619;  3  B.  W.  C.  C.  169. 

7.  Question  of  recovery  from  injury  is  one  of  fact. 

The  question  of  whether  a  workman  has  or  has  not 
recovered  is  one  of  fact,  and  the  arbitrators'  finding  on 
this  question  will  not  be  reviewed  on  appeal  where 
there  is  no  evidence  to  support  it.  Cunningham  v. 
M'Naughton  &  Sinclair  (1910),  47  Scotch  L.  R.  781;  3 
B.  W.  C.  C.  577. 

A  workman's  hand  was  injured  on  December  2,  1907; 
his  employers  agreed  to  pay  compensation  and  a  mem- 
orandum of  this  agreement  was  recorded  in  May,  1908. 
After  several  operations  for  blood-poisoning  his  Uttle 
finger  was  amputated.  In  January,  1910,  an  applica- 
tion was  made  by  the  employers  to  reduce  the  weekly 
payments;  the  grounds  of  the  application  were  that  the 
workman  had  wholly  or  partially  recovered  from  the 
injury,  and  was  then  able  to  work  and  receive  wages. 
The  judge  dismissed  the  application,  holding  that  there 
was  some  incapacity  still,  and  the  Court  of  Appeal  held 
that  on  the  evidence  the  decision  was  correct.  Leeds  & 
■Uverpool  Canal  Co.  v.  Hesketh  (1910),  102  L.  T.  663;  3 
B.  W;C.  C.  301. 

A  workman  injured  one  finger  in  July,  1909,  and 
compensation  was  paid  under  a  registered  agreement. 
On  November  26,  1909,  the  workman  admitted  to  the 
employers'  doctor  that  he  was  able  to  work,  but  on 
January   17,    1910,   when  the  employers   applied   to 


474    Bradbury's  workmen's  compensation  law 

Refusal  to  submit  to  surgical  operation 

terminate  the  agreement,  the  tip  of  the  finger  was  still 
slightly  tender.  The  arbitrator  terminated  the  com- 
pensation, and  refused  to  make  a  suspensory  award. 
It  was  held  on  appeal  that  the  decision  was  on  a  question 
of  fact,  and  there  was  evidence  to  support  it;  and  that 
the  case  was  not  a  proper  one  for  a  suspensory  award. 
Goodall  and  Clarke  v.  Kramer  (1910),  3  B.  W.  C.  C.  315. 

8.  Increasing  age  as  affecting  disability. 

An  award  of  compensation  which  has  been  paid  some 
time  should  not  be  reduced  on  the  ground  that  by  rea- 
son of  the  increased  age  of  the  workman  he  would  not 
be  earning  as  much  as  he  was  getting  at  the  time  of  the 
accident  even  if  he  had  not  been  injured.  Smith  v. 
Hughes  (1905),  8  W.  C.  C.  115. 

9.  Refusal  to  submit  to  surgical  operation. 

Where  a  workman  has  submitted  to  one  operation  as 
advised  by  the  medical  referee,  which  operation  was 
unsuccessful,  and  he  was  then  requested  by  his  em- 
ployers to  submit  to  another  operation,  which  he  re- 
fused to  do,  it  was  held,  on  an  application  to  review 
the  compensation  award  that  as  no  evidence  tending 
to  show  that  the  second  operation  would  be  successful 
was  tendered,  there  was  no  power  to  submit  the  case 
to  the  medical  referee  for  a  further  hearing.  Carroll  v. 
Gray  and  Sons  (1910),  47  Scotch  L.  R.  646;  3  B.  W.  C. 
C.  572. 

A  workman,  after  being  for  some  time  in  receipt  of 
compensation,  refused  to  undergo  an  operation.  On 
an  application  to  review  the  doctors  were  unanimous 
as  to  the  advisability  and  as  to  the  strong  possibility 
of  the  success  of  the  suggested  operation.   The  workman 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      475 

Reducing  payments  by  reason  of  ability  to  do  light  work 

called  two  doctors  whose  opinions  disagreed.  It  was 
held  that  the  finding  of  the  County  Court  judge  that 
this  workman  was  not  unreasonable,  was  a  fact  which 
could  not  be  upset  on  appeal.  Ruabon  Coal  Co.  v. 
Thomas  (1909),  3  B.  W.  C.  C.  32. 

Where  a  workman  had  injured  his  finger  in  such  a 
way  as  to  make  it  stiff  and  crooked,  and  it  was  reported 
by  the  medical  men  that  by  amputating  the  finger  the 
workman  would  be  able  to  use  the  hand  to  better  ad- 
vantage, and  the  workman  refused  to  undergo  the 
operation,  it  was  held  that  the  employer  who  had  been 
paying  compensation  could  not  merely  stop  the  entire 
compensation  on  the  ground  of  unreasonable  refusal  of 
the  workman  to  undergo  the  operation,  but  his  remedy 
was  by  a  proceeding  to  review.  O'Neill  v.  Ropner  &  Co., 
42  Irish  L.  T.  3;  2  B.  W.  C.  C.  334. 

Where  a  workman  refused  to  undergo  a  simple  and 
minor  operation,  by  which  it  clearly  appears  he  would 
be  restored  to  capacity  for  work,  and  that  the  workman 
was  of  good  sound  constitution  and  general  health  it 
was  held  that  the  arbitrator  was  justified  in  discon- 
tinuing compensation.  Donnelly  v.  William  Baird  & 
Co.  (1908),  45  Scotch  L.  R.  394;  1  B.  W.  C.  C.  95. 

10.  Reducing  payments  by  reason  of  ability  to  do 
light  work. 
A  workman  was  in  receipt  of  weekly  payments  under 
an  award.  The  employers  applied  for  diminution  of 
the  payments,  on  the  ground  that  the  man  was  fit  to 
do  hght  work.  There  was  no  evidence  that  the  man 
could  get  light  work,  and  there  was  evidence  that  he  had 
made  numerous  attempts  to  do  so  and  had  failed.  The 
County  Court  judge  found  that  the  man  was  able  to 


476    Bradbury's  workmen's  compensation  law 

Inability  to  obtain  light  work 

do  light  work  and  reduced  the  payments  from  9s.  2d. 
to  8s.  per  week.  The  Court  of  Appeal  held  that  there 
was  evidence  on  which  the  payments  could  be  reduced. 
Cardiff  Corporation  v.  Hall  (1911),  104  L.  T.  467;  4  B. 
W.  C.  C.  159.  Compare  the  last-mentioned  decision 
with  the  case  of  Proctor  &  Sons  v.  Robinson  (1909),  3 

B.  W.  C.  C.  41,  where  it  seems  to  have  been  held  that 
the  fact  that  the  workman  might  be  able  to  do  some 
kind  of  light  work  was  not  sufficient  ground  on  which 
to  reduce  the  compensation. 

11.  Inability  to  obtain  light  work. 

Where  an  agreement  has  been  entered  into  to  pay 
partial  compensation,  it  is  no  ground  for  review,  on 
behalf  of  the  workman,  to  allege  that  he  is  totally  in- 
capacitated, upon  the  contention  that  his  employers 
are  unable  to  give  him  suitable  light  work  and  he  is 
unable  to  obtain  light  employment  elsewhere.  Boag  v. 
Lochwood  Collieries  (1909),  47  Scotch  L.  R.  47;  3  B.  W. 

C.  C.  549.  In  the  last-mentioned  case  the  court  said: 
"As  I  read  the  Act  of  Parliament  and  relative  schedule 
the  question  to  be  decided  in  an  application  to  assess 
compensation  or  under  an  application  for  review  of 
weekly  payments  is  the  question  of  the  man's  physical 
capacity  to  work.  Now,  in  this  case  it  had  been  de- 
cided by  agreement  that  the  workman  was  partially 
capable  for  work.  Is  it  any  reason  for  reviewing  the 
payment  to  say  that  the  employers  cannot  find  him 
suitable  work  for  his  capacity,  or  that  he  has  not  been 
able  to  find  such  work  himself?  If  the  appellant  means 
that  his  averments  if  proved  would  of  themselves  be  a 
sufficient  ground  for  saying  that  compensation  must 
be  increased  to  the  full  allowance  under  the  statute,  I 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      477 

Reducing  payments  after  offer  and  refusal  of  light  work 

should  certainly  not  for  myself  yield  for  one  moment 
to  any  such  demand.  I  take  it  that  the  whole  question 
is  that  of  'capacity  to  work,'  which  cannot  be  decided 
merely  by  the  fact  that  the  workman  has  not  got  work, 
but  only  by  such  evidence  as  satisfies  the  court  whether 
or  not  he  is  able  to  work.' 

12.  Offering  suitable  employment. 

A  miner  who  had  injured  one  eye  so  that  he  had 
practically  no  use  thereof,  was  receiving  compensation 
when  his  employers  offered  him  work  in  the  mine  at  the 
coal  face.  This  he  refused  and  it  was  held  that  this 
could  not  be  called  ''suitable  employment"  within  the 
meaning  of  §  3  of  Schedule  1,  for  the  reason  that  there 
was  some  appreciable  increase  of  peril  to  the  remaining 
eye,  and  that  the  consequences  of  injury  to  the  remain- 
ing eye  of  a  one-eyed  man  would  be  very  serious,  and 
that  therefore  the  employers  were  not  entitled  to  have 
the  compensation  discontinued,  by  reason  of  having 
offered  the  workman  employment  which  he  had  refused. 
Eyre  v.  Houghton  Main  Colliery  Co.  (1910),  102  L.  T. 
R.  385;3B.  W.  C.  C.  250. 

13.  Reducing   payments   after  offer  and  refusal  of 
light  work. 

An  injured  workman  in  receipt  of  compensation  was 
examined  jointly  by  his  own  and  the  employer's  doctors, 
who  reported  that  he  was  fit  for  light  work.  His  em- 
ployer then  offered  him  light  work,  but  he  refused, 
thinking  that  the  work  offered  involved  some  heavy 
labor.  The  employer  then  applied  for  a  review  and  the 
County  Court  judge,  finding  that  the  man  was  fit  for 
light  work,  and  that  the  offer  made  it  perfectly  clear 


478    Bradbury's  workmen's  compensation  jjAvi 

Failure  of  workman  to  get  or  attempt  to  get  light  work 

that  the  man  would  not  have  to  do  any  heavy  labor,  re- 
duced the  payments  to  Id.  a  week.  It  was  held  on 
appeal  that  there  was  evidence  to  support  the  de- 
cision. McNamara  &  Co.  v.  Burtt  (1911),  4  B.  W.  C. 
C.  151. 

A  workman  having  been  in  receipt  of  full  compensa- 
tion for  some  months,  entered  into  an  agreement  with 
his  old  employers,  to  do  light  work  at  his  former  rate  of 
wages,  and  that  in  the  event  of  total  incapacity  re- 
curring his  rights  under  the  Act  should  revive.  He 
again  became  totally  incapacitated,  and  claimed  com- 
pensation, which  was  paid.  He  was  subsequently  of- 
fered light  employment  at  reduced  wages,  with  half 
the  difference  between  his  former  and  present  wages. 
This  offer  he  refused,  claiming  that  according  to  the 
terms  of  the  agreement  he  was  entitled  to  full  wages. 
The  employers  maintained  that  the  agreement  ter- 
minated when  the  subsequent  claim  for  compensation 
was  made,  and  that  the  workman  was  relegated  to  his 
rights  under  the  Act.  The  County  Court  judge  upheld 
the  contention  of  the  employers  and  this  determination 
was  sustained  by  the  Court  of  Appeal.  Branford  v. 
North  Eastern  Railway  Co.  (1910),  4  B.  W.  C.  C.  84. 

14.  Failure  of  workman  to  get  or  attempt  to  get  light 
work. 

On  an  application  by  employers  to  review,  it  was 
proved  that  the  workman  was  fit  for  light  work,  but  no 
evidence  was  given  that  the  man  had  been  offered  or 
could  get  light  work.  It  was  admitted  that  he  had  not 
attempted  to  get  it.  The  County  Court  judge  reduced 
the  payments  from  15s.  to  10s.  per  week.  It  was  held 
that  there  was  no  evidence  on  which  the  reduction 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      479 

Permanent  injury;  increased  disability  from  disease 

could    properly    be    made.      Anglo-Australian    Steam 
Navigation  Co.  v.  Richards  (1911),  4  B.  W.  C.  C.  247. 

15.  Disability  from  disease  following  injury. 

A  workman  was  injured  and  received  compensation. 
He  soon  returned  to  work  at  full  wages  and  compensa- 
tion ceased.  Some  time  later  he  fell  ill  and  attributing 
his  illness  to  the  injury,  applied  for  compensation. 
The  employers  resisted  on  the  ground  that  the  workman 
had  fully  recovered  from  the  effects  of  the  accident  when 
he  returned  to  work.  The  County  Court  judge  found 
that  the  man  had  recovered  from  the  injury  and  that 
the  illness  had  no  connection  with  it  and  the  compensa- 
tion was  therefore  terminated.  London  &  North-Western 
Railway  v.  Taylor  (1910),  4  B.  W.  C.  C.  11. 

16.  Workman  permanently  injured  but  suffering  in- 
creased disability  from  disease. 

A  collier,  in  1906,  had  his  right  hand  permanently 
injured.  He  received  full  compensation  at  12s.  Id. 
per  week  and  was  then  given  light  work  at  which  he 
earned  more  than  his  old  wages.  In  1910  he  left  his 
work  as  his  heart  was  affected  by  disease,  which  pre- 
vented him  from  continuing  this  light  work,  and  regis- 
tered a  memorandum  of  an  agreement  to  pay  full  com- 
pensation. His  employers  at  once  applied  for  a  review 
and  reduction  of  the  payments.  The  County  Court 
judge  found  that  the  man  was  unfit  for  work,  but  that 
the  heart  disease  was  not  connected  with  the  injury  to 
the  hand,  and  awarded  10s.  per  week.  It  was  held  that 
as  the  workman  was  still  suffering  from  an  obvious 
permanent  injury,  due  to  the  accident,  he  was  entitled 
to  compensation,  the  amount  of  which  was  a  question 


480    Bradbury's  workmen's  compensation  law 

Disability  due  to  idleness  and  softened  muscles 

for  the  judge  to  determine.     Cory  Brothers  &  Co.  v. 
Hughes  (1911),  2  K.  B.  738;  4  B.  W.  C.  C.  291. 

17.  Rolling-mill  hand  able  to  work  with  glasses  when 
vision  impaired. 

A  workman  in  a  steel  rolling  mill  had  the  sight  of  one 
eye  impaired  by  an  accident.  He  received  compensa- 
tion for  some  time  and  the  employers  then  applied  to 
review  the  payments.  Conflicting  medical  evidence 
being  given  as  to  the  state  of  the  man's  vision,  the 
judge  referred  the  matter  to  a  medical  referee,  who 
reported  that  the  man  would  see  better  with  glasses, 
and  could  do  his  old  work,  but  did  not  make  it  clear 
that  he  could  work  without  glasses.  The  judge  found 
that  the  man  was  physically  able  to  work,  but  that,  as  a 
man  with  glasses  was  unUkely  to  obtain  employment 
in  a  steel  rolling  mill,  he  was  not  commercially  able  to 
earn,  and  dismissed  the  application  to  review.  It  was 
held  that  there  was  evidence  of  a  change  of  circum- 
stances, which  the  judge  ought  to  have  considered,  and 
that  the  case  must  go  back  to  him  for  a  rehearing. 
Guest,  Keen  &  Nettlefolds  v.  Winsper  (1911),  4  B.  W. 
C.  C.  289 

18.  Disability  due  to  idleness  and  softened  muscles. 
A  collier  was  injured  in  1907  and  received  compensa- 
tion until  1910.  His  employers  then  stopped  payment. 
He  took  proceedings  and  the  County  Court  judge  found 
that  he  was  unfit  for  the  heavy  work  of  a  collier,  but 
that  his  incapacity  was  due  not  to  the  accident  but 
to  his  prolonged  idleness,  his  muscles  having  become 
soft  and  unfit  for  hard  work.  He  accordingly  awarded 
in  favor  of  the  employers.    It  was  held  on  appeal  that 


MODIFYING   AWARDS   OTHERWISE   THAN   BY  APPEAL    481 

Disability  due  to  brooding  over  injury 

there  was  evidence  on  which  the  judge  could  so  find. 
David  V.  Windsor  Steam  Coal  Co.  (1911),  4  B.  W.  C.  C. 
177. 

A  workman  had  the  tip  of  his  httle  finger  amputated, 
after  an  accident.  The  wound  healed,  leaving  slight 
adhesions.  After  paying  compensation  for  some  time, 
the  employers  applied  for  a  review.  It  was  admitted 
that  three  days  before  the  appUcation  to  review  was 
heard,  another  piece  of  his  finger  was,  under  medical 
advice,  amputated.  The  employers  contended  that  the 
man  would  have  been  fit  for  work,  and  that  the  per- 
sistence of  the  adhesions  was  due  to  his  unreasonable 
refusal  to  resume  work,  which  would  have  soon  broken 
them  down.  The  County  Court  judge  upheld  these 
contentions  and  reduced  the  payments  to  Id.  per  week. 
It  was  held  that  there  was  no  evidence  to  support  the 
findings  of  the  County  Court  judge,  and  his  ruling  was 
reversed.  Burgess  &  Co.  v.  Jewell  (1911),  4  B.  W.  C. 
C.  145. 

19.  Disability  due  to  brooding  over  injury. 

On  an  application  to  review  and  increase  a  nominal 
award,  the  two  medical  referees  of  the  court  reported 
that  the  workman,  who  had  been  injured  by  an  ad- 
mitted accident,  was,  as  regards  his  physical  condition, 
able  to  resume  his  usual  occupation  as  a  moulder.  As  to 
his  mental  condition,  they  reported  that  he  had  brooded 
so  much  over  his  accident  that  his  mind  would  not  allow 
him  to  summon  up  courage  to  persevere  at  his  usual 
work.  It  was  held  that  the  County  Court  judge  was 
right  in  finding  that  the  man  was  not  suffering  from 
any  incapacity  from  work  which  resulted  from  the  in- 
jury, but  that  his  inability  to  work  was  caused  by 
31 


482    Bradbury's  workmen's  compensation  law 

Probable  earnings  of  infant  in  different  grade 

brooding  over  the  effects  of  the  accident,  and  that  this 
was  not  incapacity  within  the  meaning  of  the  Com- 
pensation Act.  Holt  V.  Yates  and  Thorn  (1909),  3  B. 
W.  C.  C.  75. 


20.  Inability  to  get  emplo3rment  due  to  slackness  of 
work. 

An  injured  workman  in  receipt  of  part  wages  and 
reduced  compensation  is  not  entitled  to  a  restoration 
to  full  half  wages  because  of  his  inability  to  get  em- 
ployment because  of  the  slackness  of  work.  Ddbby  v. 
Wilson,  Pease  &  Co.  (1909),  2  B.  W.  C.  C.  370. 

21.  Infant  earning  as  much  after  as  he  did  before 
accident. 

An  infant  workman  was  injured  and  sustained  a 
rupture.  After  a  few  weeks  he  returned  to  his  former 
work  wearing  a  truss.  A  year  later  his  employers  ap- 
plied to  terminate  their  liability  and  proved  that  he 
was  earning  as  much  as  before  the  accident.  It  was 
held  that  the  fact  that  an  infant  workman  is  earning 
the  same  wages  as  before  the  accident  is  not  necessarily 
conclusive  that  the  employers  are  entitled  to  have  the 
compensation  terminated,  but  the  arbitrator  should 
determine  whether  the  earning  capacity  was  the  same 
as  it  would  have  been  had  he  not  been  injured.  Bowhill 
Coal  Co.  V.  Malcolm  (1910),  47  Scotch  L.  R.  449;  3  B.  W. 
C.  C.  562. 

22.  Probable  earnings  of  infant  in  different  grade. 

An  infant  skilled  laborer,  during  a  slack  time,  took 
employment  of  an  unskilled  kind,  paid  at  a  lower  rate. 
He  was  injured  while  in  the  latter  employment  and  re- 


MODIFYING   AWARDS  OTHERWISE  THAN  BY  APPEAL      483 

Profits  of  business  enterprise 

ceived  compensation  based  on  the  wages  he  was  receiv- 
ing when  injured.  On  an  apphcation  to  review  he 
claimed  to  be  entitled  to  compensation,  based  on  the 
weekly  sum  he  would  probably  have  been  earning  at 
his  skilled  work.  It  was  held  that  in  estimating  the 
probable  earnings  of  this  workman  under  Schedule  I 
(16),  regard  may  be  had  to  his  power  of  earning  money 
in  another  employment  and  in  another  class  of  employ- 
ment than  that  in  which  he  had  been  working  at  the 
time  he  was  injured.  Evans  v.  Vickers,  Sons  and 
Maxim  (1910),  102  L.  T.  199,  3  B.  W.  C.  C.  126,  aff'd 
by  House  of  Lords,  Vickers,  Sons  and  Maxim  (1910), 
3  B.  W.  C.  C.  403.  In  the  decision  of  the  House  of 
Lords  it  was  held  that  the  "weekly  sum  which  the 
workman  would  probably  have  been  earning"  is  not 
limited  to  what  the  workman  would  probably  have 
earned  in  the  same  employment  under  the  same  em- 
ployer. 

23.  Profits  of  business  enterprise  as  affecting  right 
to  reduce  compensation. 

On  an  apphcation  to  review  the  court  can  consider 
as  "wages"  the  profits  of  a  bakery  business  in  which 
the  workman  has  engaged.  Norman  &  Burt  v.  Walder 
(1904),  90  L.  T.  531;  6  W.  C.  C.  124. 

An  injured  workman,  before  the  accident,  earned  an 
average  of  £94  per  year.  After  the  accident  he  pur- 
chased a  public  house  for  £100  and  deducting  interest 
on  capital  and  all  expenses  he  still  made  a  net  profit  of 
£98.  On  an  application  to  review  the  employers  con- 
tended that  although  the  workman  had  not  recovered 
from  his  injuries  the  incapacity  to  earn  had  ceased,  as 
he  was  earning  more  since  the  accident  than  before. 


484    Bradbury's  workmen's  cqmpensation  law 


Diminishing  payments;  burden  of  proof 


It  was  held  on  appeal,  reversing  the  decision  below, 
that  the  test  was  not  the  man's  profits,  but  the  value  of 
the  work  done  had  it  been  offered  as  services  in  the  open 
market.  Paterson  v.  A.  G.  Moore  &  Co.  (1910),  47 
Scotch  L.  R.  30;  3  B.  W.  C.  C.  541. 

24.  Apportioning  loss  between  employer  and  employe. 

Where  a  man  earns  something  but  not  enough  when 
added  to  the  compensation  payable  to  equal  what  he 
was  earning  before  the  injury,  an  arbitrator  is  not 
bound  to  reduce  the  payments  so  that  the  actual  loss 
to  the  workman  shall  be  borne  equally  by  him  and  his 
employer.    Ellis  v.  Knott  (1900),  2  W.  C.  C.  116. 

25.  Allowance    for    expenses    when   work  furnished 
away  from  home. 

Employers  who  were  paying  a  workman  17s.  5d.  a 
week  compensation  gave  him  light  work  at  a  different 
place  some  miles  from  home,  and  then  filed  ah  applica- 
tion to  review  the  compensation.  The  County  Court 
judge  reduced  the  payments,  but  allowed  the  man  the 
cost  of  a  week-end  ticket  and  also  lodging  allowance, 
as  he  was  compelled  to  live  apart  from  his  family  dur- 
ing the  week.  The  family  then  moved  to  the  place 
where  he  was  working  and  on  a  new  application  by  the 
employers  the  judge  still  further  reduced  the  com- 
pensation. On  appeal  it  was  held  that  the  decision  of 
the  court  was  on  a  question  of  fact  and  the  Court  of 
Appeal  would  not  interfere.  The  Taff  Vale  Railway  Co. 
V.  Lane  (1910),  3  B.  W.  C.  C.  297. 

26.  Diminishing  payments;  burden  of  proof. 

''Once  liability  is  admitted  and  payment  of  an 
amount  for  compensation  is  made,  such  amount  should 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      485 
Diminishing  payments;  burden  of  proof 

be  the  employer's  liability  until  he  (the  employer)  dis- 
charges the  onus  of  showing  a  change  of  circumstances 
which  entitles  him  to  have  the  amount  diminished." 
Maundrell  v.  Dunkerton  Collieries  Co.  (1910),  4  B.  W. 
C.  C.  76,  78. 

On  an  application  to  diminish  a  weekly  payment,  it 
was  found  that  the  workman  could  do  some  light  work, 
if  he  could  obtain  it;  but  the  employer  did  not  produce 
any  evidence  that  he  could  obtain  such  light  work,  and 
the  judge  refused  to  reduce  the  weekly  payments.  It 
was  held  on  appeal  that  the  employers  had  not  dis- 
charged the  onus  of  proof  which  was  upon  them  to 
show  that  the  man  could  obtain  such  work.  Proctor 
and  Sons  v.  Robinson  (1909),  3  B.  W.  C.  C.  41.  In  the 
last-mentioned  case  the  court  said:  "I  think  the  em- 
ployers here  struck  too  soon.  Either  they  should  first 
obtain  some  work  which  the  workman  could  do  and 
offer  it  to  him,  and  give  evidence  of  this,  or  else  they 
should  give  evidence  that  there  is  some  chance  of  the 
workman  obtaining  a  particular  kind  of  light  work  in 
the  district.  Here  the  employers  failed  to  prove  the 
case  they  put  forward.  The  burden  was  upon  them  and 
they  failed  to  discharge  it." 

Where  an  employer  who  has  been  paying  compensa- 
tion contends  that  the  incapacity  from  the  injury  has 
ceased,  and  that  the  workman  is  suffering  from  a 
cardiac  affection  unconnected  with  the  injury,  the  onus 
is  on  the  employer  of  proving  this  contention  on  a  pro- 
ceeding to  reduce  or  discontinue  the  compensation. 
Quinn  v.  M'Callum  (1908),  46  Scotch  L.  R.  141;  2  B. 
W.  C.  C.  339. 

The  employers  applied  to  review  payments  under  a 
registered  agreement,  putting  in  a  certificate  of  a  medi- 


486    Bradbury's  workmen's  compensation  law 

Recovering  overpayments  of  compensation 

cal  referee,  obtained  in  accordance  with  Schedule  I  (15), 
as  proof  that  the  workman  was  fit  to  work.  The  man 
tendered  medical  evidence  in  contradiction,  but  the 
County  Court  judge  rejected  it  on  the  ground  that  the 
certificate  was  conclusive.  It  was  held  that  the  evidence 
was  rightly  rejected,  the  certificate  being  conclusive. 
Sapcote  ffc  Sons  v.  Hancock  (1911),  4  B.  W.  C.  C.  184. 

27.  Keeping  proceeding  alive  by  payment  of  nominal 
sum. 

On  an  application  to  review  a  weekly  payment  the 
County  Court  judge  has  jurisdiction  to  make  a  sus- 
pensory award  of,  say.  Id.  per  week,  or  a  declaration  of 
liability,  it  matters  not  which,  for  the  purpose  of  keep- 
ing alive  the  workman's  claim  for  compensation,  and 
his  right  to  go  back  to  the  judge  in  the  event  of  new 
circumstances  arising  rendering  such  a  course  appro- 
priate. Owners  of  Vessel  "Tynron"  v.  Morgan  (1909), 
100  L.  T.  461;  2  B.  W.  C.  C.  406. 

28.  Recovering  overpayments  of  compensation. 

On  an  apphcation  to  review  an  order  for  compensa- 
tion, it  was  held  that  the  weekly  payments  should  be 
reduced  as  of  a  certain  antecedent  date.  The  employer 
refused  to  make  any  further  payments  until  the  amount 
of  overpayments  had  been  worked  off.  It  was  held  that 
the  employer  had  no  right  to  recover  overpayments  in 
this  way,  as  his  remedy  was  by  action.  B.  Hosegood  and 
Sons  V.  Wilson  (1910),  4  B.  W.  C.  C.  30. 

Where  an  employer,  by  mistake,  has  paid  more  than 
half  wages,  he  is  entitled  to  have  the  excess  payments 
set  off  as  to  future  compensation.  Muller  v.  The 
Batavia  Line  (1909),  2  B.  W.  C.  C.  495. 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      487 

Kansas 


CALIFORNIA 

(L.  1911,  c.  399) 

The  California  Act  contains  no  provisions  for  modi- 
fying the  award  except  as  set  forth  in  Chapter  XXV, 
ante,  page  454. 

ILLINOIS 

(L.  1911,  c.  000) 

"§18.  An  agreement  or  award  may,  at  any  time 
after  six  months  and  before  eighteen  months  from  the 
date  of  fihng,  be  reviewed,  upon  the  appHcation  of 
either  party,  on  the  ground  that  the  incapacity  of  the 
employe  has  subsequently  increased  or  diminished. 
Such  application  shall  be  made  to  any  court  of  com- 
petent jurisdiction  and  unless  the  parties  consent  to 
arbitration,  the  court  may  appoint  a  medical  prac- 
titioner to  examine  the  employe  and  report  upon 
his  condition;  and  upon  his  report,  and  after  hearing 
all  the  evidence  the  court  may  modify  such  agreement 
or  award,  as  may  be  just,  by  ending,  increasing  or 
diminishing  the  compensation,  subject  to  the  limita- 
tions hereinbefore  provided." 

KANSAS 

(L.  1911,  c.  218) 

"§29.  Agreements  and  awards — when  canceled.  At 
any  time  within  one  year  after  an  agreement  or  award 
has  been  so  filed,  a  judge  of  the  district  court  having 
jurisdiction  may,  upon  the  application  of  either  party, 
cancel  such  agreement  or  award,  upon  such  terms  as 
may  be  just,  if  it  be  shown  to  his  satisfaction  that  the 
workman  has  returned  to  work  and  is  earning  approx- 


488    Bradbury's  workmen's  compensation  law 

Massachusetts 

imately  the  same  or  higher  wages  as  or  than  he  did 
before  the  accident,  or  that  the  agreement  or  award 
has  been  obtained  by  fraud  or  undue  influence,  or 
that  the  committee  or  arbitrator  making  the  award 
acted  without  authority  or  was  guilty  of  serious  mis- 
conduct, or  that  the  award  is  grossly  inadequate  or 
grossly  excessive,  or  if  the  employ^  absents  himself 
so  that  a  reasonable  examination  of  his  condition  can- 
not be  made,  or  has  departed  beyond  the  boundaries 
of  the  United  States  or  Canada." 

"§32.  Review  or  modification  of  agreement  or  award. 
An  agreement  or  award  may  be  modified  at  any  time 
by  a  subsequent  agreement;  or,  at  any  time  after  one 
year  from  the  date  of  filing;  it  may  be  reviewed,  upon 
the  application  of  either  party  on  the  ground  that  the 
incapacity  of  the  workman  has  subsequently  increased 
or  diminished.  Such  application  shall  be  made  to  the 
said  district  court;  and,  unless  the  parties  consent  to 
arbitration,  the  court  may  appoint  a  medical  practi- 
tioner to  examine  the  workman  and  report  to  it;  and 
upon  his  report  and  after  hearing  the  evidence  of  the 
parties,  the  court  may  modify  such  agreement  or 
award,  as  may  be  just,  by  ending,  increasing  or  dimin- 
ishing the  compensation,  subject  to  the  limitations 
hereinbefore  provided." 

MASSACHUSETTS 

(L.  .1911,  c.  751) 

"  Part  III,  §  12.  Any  weekly  payment  under  this  act 
may  be  reviewed  by  the  industrial  accident  board  at 
the  request  of  the  association  or  of  the  employ^ ;  and 
on  such  review  it  may  be  ended,  diminished,  or  in- 
creased, subject  to  the  maximum  and  minimum 
amounts  above  provided,  if  the  board  finds  that  the 
condition  of  the  employ^  warrants  such  action." 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      489 
New  Hampshire 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  III,  §  14.  Any  weekly  payment  under  this 
act  may  be  reviewed  by  the  industrial  accident  board 
at  the  request  of  the  employer  or  the  insurance  com- 
pany carrying  such  risks,  or  the  commissioner  of 
insurance  as  the  case  may  be,  or  the  employ^;  and  on 
such  review  it  may  be  ended,  diminished  or  increased, 
subject  to  the  maximum  and  minimum  amounts 
above  provided,  if  the  board  finds  that  the  facts 
warrant  such  action," 

NEVADA 

(L.  1911,  c.  183) 

There  is  no  provision  in  the  Nevada  law  on  this 
subject. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

There  is  no  provision  in  the  New  Hampshire  Act 
on  this  subject.^ 

1  This  seems  to  be  a  defect  in  the  statute.  If,  under  §  9  (Chap- 
ter XXIV,  ante,  page  427)  the  court  makes  an  order  requiring  the 
employer  to  pay  a  specified  sum  weekly  and  if  the  condition  of  the 
employ^  should  subsequently  change,  there  does  not  seem  to  be 
any  specific  provision  in  the  statute  whereby  this  relief  can  be  se- 
cured. It  may  possibly  be  that  such  relief  could  be  granted  under 
the  wording  of  the  latter  part  of  §  9  wherein  it  is  provided  that 
"either  such  employer  or  workman  may  apply  to  said  Superior 
Court  or  to  any  justice  thereof  in  similar  proceedings  for  the  de- 
termination of  any  other  question  that  may  arise  imder  the  com- 
pensation feature  of  this  act." 


490    Bradbury's  workmen's  compensation  law 

Rhode  Island 

NEW  JERSEY 

(L.  1911,  c.  95) 

An  agreement  or  award  of  compensation  may  be 
modified  at  any  time  by  a  subsequent  agreement, 
or  at  any  time  after  one  year  from  the  time  when 
the  same  became  operative  it  may  be  reviewed  upon 
the  appHcation  of  either  party  on  the  ground  that  the 
incapacity  of  the  injured  employ^  has  subsequently 
increased  or  diminished.  See  §  2,  paragraph  21  which 
is  discussed  in  Chapter  XI,  ante,  page  299. 

OHIO 

(L.  1911,  c.  000) 

"§  33.  Board  of  awards  may  modify  acts.  The 
power  and  jurisdiction  of  the  Board  over  each  case 
shall  be  continuing,  and  it  may  from  time  to  time  make 
such  modification  or  change  with  respect  to  former 
findings  or  orders  with  respect  thereto,  as,  in  its  opin- 
ion, may  be  justified." 

RHODE  ISLAND 

(L.  1912,  c.  571) 

"Art.  Ill,  §  14.  Review  of  decrees.  At  any  time 
before  the  expiration  of  two  years  from  the  date  of 
the  approval  of  an  agreement,  or  the  entry  of  a  decree 
fixing  compensation,  but  not  afterwards,  and  before 
the  expiration  of  the  period  for  which  compensation 
has  been  fixed  by  such  agreement  or  decree,  but  not 
afterwards,  any  agreement,  award,  findings  or  decree 
may  be  from  time  to  time  reviewed  by  the  superior 
court  upon  the  application  of  either  party,  after  due 


MODIFYING  AWARDS  OTHERWISE  THAN  BY  APPEAL      491 

Washington 

notice  to  the  other  party,  upon  the  ground  that  the 
incapacity  of  the  injured  employ^  had  subsequently 
ended,  increased,  or  diminished.  Upon  such  review 
the  court  may  increase,  diminish,  or  discontinue  the 
compensation  from  the  date  of  the  application  for 
review,  in  accordance  with  the  facts,  or  make  such 
other  order  as  the  justice  of  the  case  may  require,  but 
shall  order  no  change  of  the  status  existing  prior  to  the 
application  for  review.  The  finding  of  the  court  upon 
such  review  shall  be  served  on  the  parties  and  filed 
with  the  clerk  of  the  court  having  jurisdiction,  in  like 
time  and  manner  and  subject  to  like  disposition  as  in 
the  case  of  original  decrees;  provided  that  an  agreement 
for  compensation  may  be  modified  at  any  time  by  a 
subsequent  agreement  between  the  parties  approved 
by  the  superior  court  in  the  same  manner  as  original 
agreements  in  regard  to  compensation  are  required  to 
be  approved  by  the  provisions  of  section  1  of  Arti- 
cle III  of  this  act." 


WASHINGTON 

(L.  1911,  c.  74) 

"§5.  (h)  If  aggravation,  diminution,  or  termina- 
tion of  disability  takes  place  or  be  discovered  after 
the  rate  of  compensation  shall  have  been  established 
or  compensation  terminated  in  any  case  the  depart- 
ment may,  upon  the  application  of  the  beneficiary  or 
upon  its  own  motion,  readjust  for  future  application 
the  rate  of  compensation  in  accordance  with  the  rules 
in  this  section  provided  for  the  same,  or  in  a  proper 
case  terminate  the  payments." 

An  increase  or  rearrangement  of  an  award  must  be 
made  on  application  filed  with  the  department.     But 


492    Bradbury's  workmen's  compensation  law 

Wisconsin 

"no  increase  or  rearrangement  shall  be  operative  for 
any  period  prior  to  the  application  therefor."  §  12 
(c).    See  Chapter  XXI,  ante,  page  374. 

WISCONSIN 
(L.  1911,  c.  50) 

Any  compromise  can  be  reviewed  and  set  aside 
within  one  year  from  the  time  of  such  compromise. 
§  2394-15.    Chapter  XXIV,  ante,  page  448. 


CHAPTER  XXVII 

MANNER  OF  CREATING  INSURANCE  FUND,  OR  OTHER 
ALTERNATIVE  PLAN,  IN  COMMONWEALTHS  WHERE 
THIS  IS  REQUIRED  OR  PERMITTED 

Page  Page 

California 493     New  Hampshire 514 

Illinois 499     New  Jersey 514 

Kansas 499     Ohio 514 

Massachusetts 500     Rhode  Island 517 

Michigan 505     Washington 518 

Nevada 514     Wisconsin 530 

CALIFORNIA 

(L.  1911,  c.  399) 

By  Chapter  22  of  the  Laws  of  1911,  which  was  ap- 
proved by  the  governor  on  December  24, 1911,  it  is  pro- 
vided as  follows: 

"§  1.  Individuals,  partnerships  or  corporations  may 
exchange  reciprocal  or  interinsurance  contracts  pro- 
viding indemnity  among  each  other  from  loss  or  from 
other  damages  in  accordance  with  the  following  pro- 
visions of  this  act;  provided,  that  no  individual,  part- 
nership or  corporation  thus  exchanging  indemnity 
shall  assume  on  any  single  risk  an  amount  greater 
than  ten  per  cent  of  the  net  financial  rating  of  such 
individual,  partnership  or  corporation;  such  financial 
rating  to  be  shown  by  the  reports  of  a  commercial 
agency  having  at  least  one  hundred  thousand  mem- 
bers. 

"§2.  Such  individuals,  partnerships  or  corpora- 
493 


494    Bradbury's  workmen's  compensation  law 

California 

tions  so  contracting  among  themselves  shall  have  the 
power  to  appoint  an  attorney,  agent  or  other  represent- 
ative and  shall,  through  their  attorney,  agent  or 
other  representative,  file  with  the  insurance  commis- 
sioner of  this  State  a  certificate  in  writing,  verified  by 
the  oath  of  said  attorney,  agent  or  other  representa- 
tive, setting  forth: 

"  (a)  The  name  or  title  by  which  said  individuals, 
partnerships  or  corporations  intending  to  make  such 
contracts  shall  be  known.  The  insurance  commis- 
sioner may  reject  any  name  or  title  so  submitted  when 
the  same  is  an  interference  with  or  too  similar  to  one 
already  appropriated  or  likely  to  mislead  the  public 
in  any  respect  and,  in  such  case,  a  name  not  liable  to 
such  objection  must  be  chosen. 

"(h)  A  verified  copy  of  the  form  of  poUcy,  contract 
or  agreement  under  or  by  which  such  indemnity  is 
to  be  exchanged. 

"(c)  A  verified  copy  of  the  form  of  power  of  at- 
torney or  other  authority  of  any  said  attorney,  agent 
or  other  representative  setting  forth  the  character  of 
such  representation  and  the  authority  of  such  repre- 
sentative. 

"(d)  The  location  of  the  office  or  offices  through 
which  said  policies,  contracts  or  agreements  are  to  be 
issued. 

''  (e)  Such  attorney  in  fact  shall  also  file  a  stipula- 
tion or  agreement  in  writing  that  any  notice  provided 
by  law  or  by  any  insurance  policy,  proof  of  loss, 
summons  or  other  process  may  be  served  upon  the 
attorney  in  fact  or  upon  the  insurance  commissioner 
of  the  State  of  California,  in  all  actions  or  in  other 
legal  proceedings  against  such  individuals,  partner- 
ships or  corporations  thus  exchanging  indemnity 
under  the  provisions  of  section  1  of  this  Act.     All 


MANNER   OF   CRIJATING    INSURANCE    FUND  495 

California 

notices,  proofs  of  loss,  summons  or  other  legal  process 
so  served  shall  give  jurisdiction  over  the  person  of 
such  individuals,  partnerships  or  corporations  thus 
exchanging  indemnity.  Whenever  such  service  of 
notice,  proofs  of  loss,  summons  or  other  process  shall 
be  made  upon  the  insurance  commissioner,  he  must 
within  ten  days  thereafter,  transmit  by  mail,  postage 
paid,  a  copy  of  such  notice,  proof  of  loss,  or  summons, 
or  other  process  to  the  attorney  in  fact  so  appointed 
by  such  individuals,  partnerships  or  corporations  so 
contracting  among  themselves  and  shall  be  addressed 
to  such  attorney  in  fact  at  the  home  or  principal 
office  through  which  such  poUcies  are  to  be  issued. 
The  sending  of  such  copy  by  the  insurance  commis- 
sioner shall  be  a  necessary  part  of  the  service  of  the 
notice,  proof  of  loss,  summons  or  other  process.  When 
any  notice,  summons  or  other  legal  process  is  served 
upon  the  insurance  commissioner  pursuant  to  the 
provisions  of  this  section,  the  service  as  to  such  in- 
dividuals, partnerships,  or  corporations  thus  exchang- 
ing indemnity  shall  be  deemed  complete  at  the  end  of 
sixty  days  after  the  date  of  the  maihng  of  such  copy 
of  such  notice,  proof  of  loss,  suromons  or  other  legal 
process  to  the  attorney  in  fact  as  herein  provided  for. 
"(/)  The  attorney,  agent  or  other  representative 
shall,  whenever  and  as  often  as  the  same  shall  be 
requested,  file  with  the  insurance  commissioner  a 
statement  verified  by  his  oath  to  the  effect  that  he 
has  examined  the  commercial  rating  of  the  individuals, 
partnerships  or  corporations,  composing  the  subscri- 
bers in  such  reciprocal  or  interinsurance  exchange  as 
shown  by  a  commercial  agency  having  at  least  one 
hundred  thousand  subscribers  and  that,  for  such  ex- 
amination, it  appears  that  no  subscriber  of  such  ex- 
change has  assumed  on  any  single  risk  an  amount  of 


496    Bradbury's  workmen's  compensation  law 

California 

liability  greater  than  ten  per  cent  of  the  net  financial 
rating  of  such  subscriber  when  such  risk  was  assumed. 

"  (g)  There  shall  also  be  filed  with  the  insurance 
commissioner  by  any  said  attorney,  agent  or  other 
representative,  a  written  stipulation  to  the  effect  that 
all  insurance  written  by  him  upon  risks  situated 
within  this  state  shall  be  deemed  to  be  business  done 
in  this  state  and  within  the  terms  and  subject  as  to 
taxation  to  the  provisions  of  section  14  of  article  13  of 
the  constitution  of  this  state. 

"§3.  The  agent,  attorney  or  other  representative 
by  or  through  whom  are  issued  or  negotiated  any 
policies  of  or  contracts  or  agreements  for  any  insurance 
or  indemnity  of  the  character  referred  to  in  section 
one  of  this  act  shall  procure  from  the  insurance  com- 
missioner a  certificate  of  authority  stating  that  all 
the  requirements  of  this  act  have  been  complied  with 
and  upon  such  compliance  and  the  payment  of  a  fee  of 
fifty  dollars  the  insurance  commissioner  shall  issue 
such  certificate.  Such  certificate  must  be  renewed 
■  annually,  for  which  a  fee  of  ten  dollars  shall  be  paid. 
Any  such  certificate  so  issued  as  above  may  be  re- 
voked or  suspended  by  the  insurance  commissioner 
if  any  such  individuals,  partnerships  or  corporations 
exchanging  indemnity  under  the  provisions  of  this 
act  fail  to  comply  with  any  or  all  of  the  require- 
ments of  this  act. 

"§4.  The  attorney  in  fact  of  such  individuals, 
partnerships  or  corporations  composing  such  recip- 
rocal or  interinsurance  exchange  shall  file  with  the 
insurance  commissioner  of  this  state,  on  or  before  the 
first  of  March  of  each  year,  upon  forms  to  be  prepared 
by  the  insurance  commissioner,  a  statement  which 
must  exhibit  the  condition  and  affairs  of  such  exchange 
on  the  31st  day  of  December  then  next  preceding. 


MANNER   OF   CREATING   INSURANCE   FUND         497 
California 

"§5.  The  insurance  commissioner,  whenever  he 
deems  necessary,  must  make  an  examination  of  the 
condition  and  affairs  relating  to  the  exchange  of  in- 
demnity of  such  individuals,  partnerships  or  corpora- 
tions composing  such  reciprocal  or  interinsurance  ex- 
change and  must  make  such  an  examination  before 
issuing  its  original  certificate  of  authority  to  do 
business  in  this  state;  or  where  the  home  office  of  the 
interinsurance  or  reciprocal  exchange  is  located  out- 
side of  the  State  of  California,  and  when  such  interin- 
surance or  reciprocal  exchange  is  licensed  by  the 
insurance  commissioner  or  department  of  the  state 
where  such  home  office  is  located,  the  insurance  com- 
missioner shall  accept  as  satisfactory  a  certificate  of 
compliance  issued  by  the  insurance  commissioner  or 
department  of  the  state  where  said  home  office  is 
located.  Such  examination  shall  verify  the  certificate 
and  statement  filed  by  the  attorney  in  fact.  Such 
exchange  must  open  its  books  and  papers  for  the  in- 
spection of  the  insurance  commissioner  and  shall 
otherwise  facilitate  such  examination  and  the  commis- 
sioner may  administer  oaths  and  examine  under  oath 
any  person  relative  to  the  contracts  of  such  exchange, 
and  if  he  finds  the  books  to  have  been  carelessly  or 
improperly  kept  or  posted  he  must  employ  sworn 
experts  to  rewrite,  post  and  balance  the  same  at  the 
expense  of  such  individuals,  partnerships  or  corpora- 
tions composing  such  reciprocal  or  interinsurance 
exchange.  Such  examination  must  be  conducted  in 
the  county  where  such  individuals,  partnerships  or 
corporations  composing  such  reciprocal  or  interin- 
surance exchange  has  its  principal  office  and  must  be 
private.  Whenever  the  commissioner  shall  make  such 
examination  as  aforesaid  the  same  must  be  at  the 
expense  of  the  individuals,  partnerships  and  corpora- 
32 


498    Bradbury's  workmen's  compensation  law 

California 

tions  composing  such  reciprocal  or  interinsurance 
exchange;  such  expense  to  be  paid  in  advance,  and  in 
the  event  or  refusal  to  pay  such  expenses  the  insurance 
commissioner  may  refuse  to  issue  any  such  certificate 
of  authority  and  must  revoke  any  existing  certificate 
of  authority  authorizing  such  individuals,  partner- 
ships and  corporations  composing  such  reciprocal  or 
interinsurance  exchange  to  execute  such  contracts  of 
indemnity. 

"§6.  Unincorporated  interindemnity  companies 
who  do  not  issue  policies  of  insurance,  who  do  not 
charge  expenses  of  management  except  in  liquidation 
of  losses,  nor  accept  premiums  from  its  members  shall 
be  exempt  from  the  provisions  of  this  act. 

"  §  7.  All  policies  and  insurance  contracts  or  con- 
tracts of  indemnity  upon  a  risk  or  risks  situated  in  the 
State  of  California,  held  by  an  individual,  partnership 
or  corporation  as  a  subscriber  of  any  reciprocal  or  inter- 
insurance exchange  which  exchange  is  not  authorized 
to  do  business  in  the  State  of  California  shall  be  null  and 
void ;  provided,  that  any  insurance  agreement  or  agree- 
ment for  indemnity  on  goods  between  states  or  terri- 
tory and  states  or  to  or  from  a  foreign  country  or  the 
property  of  common  carriers  used  by  such  common  car- 
riers in  the  transaction  of  interstate  commerce  or  com- 
merce with  foreign  countries,  shall  be  deemed  not  void. 

"§8.  For  the  purpose  of  taxation  under  the  pro- 
visions of  section  14  of  article  13  of  the  constitution 
of  the  State  of  California  all  contracts  of  indemnity 
upon  risks  located  in  this  state  between  individuals, 
partnerships  and  corporations  under  the  provisions 
of  this  act  shall  be  deemed  to  be  contracts  of  insurance 
upon  business  done  in  this  state  under  and  subject  to 
the  provisions  of  such  section  14  article  13  of  the  con- 
stitution of  the  State  of  California. 


MANNER   OF   CREATING    INSURANCE    FUND         499 

Kansas 

"§9.  Individuals,  partnerships  and  corporations 
exchanging  reciprocal  or  interinsurance  and  contracts 
providing  indemnity  among  each  other  shall  be  exempt 
from  the  provisions  of  other  insurance  laws  of  this 
state. 

ILLINOIS 

(L.  1911,  c.  000) 

There  is  no  provision  in  the  Illinois  Act  on  this  sub- 
ject. 

KANSAS 
(L.  1911,  c.  218) 

"  §  39.  Certificate  required.  If  the  superintendent 
of  insurance  by  and  with  the  advice  and  written  ap- 
proval of  the  attorney  general  certifies  that  any  scheme 
of  compensation,  benefit  or  insurance  for  the  work- 
man of  an  employer  in  any  employment  to  which  this 
act  apphes,  whether  or  not  such  scheme  includes  other 
employers  and  their  workman,  provides  scales  of 
compensation  not  less  favorable  to  the  workman  and 
their  dependents  than  the  corresponding  scales  con- 
tained in  this  act,  and  that,  where  the  scheme  provides 
for  contributions  by  the  workman,  the  scheme  confers 
benefits  at  least  equivalent  to  those  contributions,  in 
addition  to  the  benefits  to  which  the  workmen  would 
have  been  entitled  under  this  act  or  their  equivalents, 
the  employer,  may,  while  the  certificate  is  in  force,  con- 
tract with  any  of  his  workmen  that  the  provisions 
of  the  scheme  shall  be  substituted  for  the  provisions 
of  this  act;  and  thereupon  the  employer  shall  be  liable 
only  in  accordance  with  that  scheme;  but,  save  as 
aforesaid,  this  act  shall  not  apply  notwithstanding  any 
contract  to  the  contrary  made  after  this  act  becomes  a 
law. 


500    Bradbury's  workmen's  compensation  law 

Massachusetts 

"  §  40,  Condition  to  certificate.  No  scheme  shall  be 
so  certified  which  does  not  contain  suitable  provisions 
for  the  equitable  distribution  of  any  moneys  or  securi- 
ties held  for  the  purpose  of  the  scheme,  after  due 
provision  has  been  made  to  discharge  the  liabilities 
already  accrued,  if  and  when  such  certificate  is  revoked 
or  the  scheme  otherwise  terminated. 

"§41.  Certificate  to  he  revocable.  If  at  any  time  the 
scheme  no  longer  fulfills  the  requirements  of  this 
article,  or  is  not  fairly  administered,  or  other  valid 
and  substantial  reasons  therefor  exist,  the  superin- 
tendent of  insurance  by  and  with  the  attorney  general 
shall  revoke  the  certificate  and  the  scheme  shall 
thereby  be  terminated. 

"§42.  InformOftion  to  he  reported.  Where  a  certi- 
fied scheme  is  in  effect  the  employer  shall  answer  all 
such  inquiries  and  furnish  all  such  accounts  in  regard 
thereto  as  may  be  required  by  the  superintendent. 

"§43.  The  superintendent  of  insurance  may  make 
all  rules  and  regulations  necessary  to  carry  out  the 
purposes  of  the  four  preceding  sections." 

MASSACHUSETTS 
(L.  1911,  c.  751) 
"PART    IV 
"  The  Massachusetts  Employes  Insurance  Association 

"§  1.  The  Massachusetts  Employes  Insurance  As- 
sociation is  hereby  created  a  body  corporate  with 
the  powers  provided  in  this  act  and  with  all  the  gen- 
eral corporate  powers  incident  thereto. 

"§  2.  The  governor  shall  appoint  a  board  of  direct- 
ors of  the  association,  consisting  of  fifteen  members, 
who  shall  serve  for  a  term  of  one  year,  or  until  their 


MANNER   OF   CREATING   INSURANCE   FUND         501 

Massachusetts 

successors  are  elected  by  ballot  by  the  subscribers  at 
such  time  and  for  such  term  as  the  by-laws  shall 
provide. 

"§  3.  Until  the  first  meeting  of  the  subscribers  the 
board  of  directors  shall  have  and  exercise  all  the 
powers  of  the  subscribers,  and  may  adopt  by-laws 
not  inconsistent  with  the  provisions  of  this  act,  which 
shall  be  in  effect  until  amended  or  repealed  by  the 
subscribers. 

"§4.  The  board  of  directors  shall  annually  choose 
by  ballot  a  president  who  shall  be  a  member  of  the 
board,  a  secretary,  a  treasurer,  and  such  other  officers 
as  the  by-laws  shall  provide. 

"  §  5.  Seven  or  more  of  the  directors  shall  constitute 
a  quorum  for  the  transaction  of  business.  Vacancies 
in  any  office  may  be  filled  in  such  a  manner  as  the 
by-laws  shall  provide. 

"  §  6.  Any.  employer  in  the  commonwealth  may 
become  a  subscriber. 

"§7.  The  board  of  directors  shall,  within  thirty 
days  of  the  subscription  of  twenty-five  employers, 
call  the  first  meeting  of  the  subscribers  by  a  notice  in 
writing  mailed  to  each  subscriber  at  his  place  of  busi- 
ness not  less  than  ten  days  before  the  date  fixed  for 
the  meeting. 

"§  8.  In  any  meeting  of  the  subscribers  each  sub- 
scriber shall  be  entitled  to  one  vote,  and  if  a  subscriber 
has  five  hundred  employes  to  whom  the  association 
is  bound  to  pay  compensation  he  shall  be  entitled  to 
two  votes,  and  he  shall  be  entitled  to  one  additional 
vote  for  each  additional  five  hundred  employes  to 
whom  the  association  is  bound  to  pay  compensation, 
but  no  subscriber  shall  cast,  by  his  own  right  or  by 
the  right  of  proxy,  more  than  twenty  votes. 

"§9.  No  policy  shall  be  issued  by  the  association 


502    Bradbury's  workmen's  compensation  law 

Massachusetts 

until  not  less  than  one  hundred  employers  have  sub- 
scribed, who  have  not  less  than  ten  thousand  em- 
ployes to  whom  the  association  may  be  bound  to  pay 
compensation. 

"§  10.  No  policy  shall  be  issued  until  a  list  of  the 
subscribers,  with  the  number  of  employes  of  each,  to- 
gether with  such  other  information  as  the  insurance 
commissioner  may  require,  shall  have  been  filed  at  the 
insurance  department,  nor  until  the  president  and 
secretary  of  the  association  shall  have  certified  under 
oath  that  every  subscription  in  the  list  so  filed  is 
genuine  and  made  with  an  agreement  by  every  sub- 
scriber that  he  will  take  the  policies  subscribed  for  by 
him  within  thirty  days  of  the  granting  of  a  license  to 
the  association  by  the  insurance  commissioner  to 
issue  policies. 

''§11.  If  the  number  of  subscribers  falls  below  one 
hundred,  or  the  number  of  employes  to  whom  the 
association  may  be  bound  to  pay  compensation  falls 
below  ten  thousand,  no  further  policies  shall  be  issued 
until  other  employers  have  subscribed,  who,  together 
with  existing  subscribers,  amount  to  not  less  than  one 
hundred  who  have  not  less  than  ten  thousand  em- 
ployes, said  subscriptions  to  be  subject  to  the  provi- 
sions contained  in  the  preceding  section. 

"§  12.  Upon  the  filing  of  the  certificate  provided 
for  in  two  preceding  sections  the  insurance  commis- 
sioner shall  make  such  investigation  as  he  may  deem 
proper  and,  if  his  findings  warrant  it,  grant  a  license 
to  the  association  to  issue  policies. 

"§  13.  The  board  of  directors  shall  distribute  the 
subscribers  into  groups  in  accordance  with  the  nature 
of  the  business  and  the  degree  of  the  risk  of  injury. 
Subscribers  within  each  group  shall  annually  pay  in 
cash,  or  notes  absolutely  payable,  such  premiums  as 


MANNER   OF   CREATING   INSURANCE    FUND  503 

Massachusetts 

may  be  required  to  pay  the  compensation  herein  pro- 
vided for  the  injuries  which  may  occur  in  that 
year. 

"§  14.  The  association  may  in  its  by-laws  and 
policies  fix  the  contingent  mutual  liability  of  the  sub- 
scribers for  the  payment  of  losses  and  expenses  not 
provided  for  by  its  cash  funds;  but  such  contingent 
liability  of  a  subscriber  shall  not  be  less  than  an 
amount  equal  to  and  in  addition  to  the  cash  premium. 

"§  15.  If  the  association  is  not  possessed  of  cash 
funds  above  its  unearned  premiums  sufficient  for  the 
payment  of  incurred  losses  and  expenses,  it  shall 
make  an  assessment  for  the  amount  needed  to  pay 
such  losses  and  expenses  upon  the  subscribers  hable 
to  assessment  therefor  in  proportion  to  their  several 
liability.  Every  subscriber  shall  pay  his  proportional 
part  of  any  assessment  which  may  be  laid  by  the 
association,  in  accordance  with  law  and  his  contract, 
on  account  of  injuries  sustained  and  expenses  incurred 
while  he  is  a  subscriber. 

"§  16.  The  board  of  directors  may,  from  time  to 
time,  by  vote  fix  and  determine  the  amount  to  be 
paid  as  a  dividend  upon  policies  expiring  during 
each  year  after  retaining  sufficient  sums  to  pay  all 
the  compensation  which  may  be  payable  on  account  of 
injuries  sustained  and  expenses  incurred.  All  pre- 
miums, assessments,  and  dividends  shall  be  fixed  by 
and  for  groups  as  heretofore  provided  in  accordance 
with  the  experience  of  each  group,  but  all  the  funds 
of  the  association  and  the  contingent  liability  of  all 
the  subscribers  shall  be  available  for  the  payment  of 
any  claim  against  the  association. 

"§  17.  Any  proposed  premium,  assessment,  div- 
idend or  distribution  of  subscribers  shall  be  filed  with 
the  insurance  department  and  shall  not  take  effect 


504    Bradbury's  workmen's  compensation  law 

Massachusetts 

until  approved  by  the  insurance  commissioner  after 
such  investigation  as  he  may  deem  necessary. 

*'§  18.  The  board  of  directors  shall  make  and  en- 
force reasonable  rules  and  regulations  for  the  preven- 
tion of  injuries  on  the  premises  of  subscribers,  and  for 
this  purpose  the  inspectors  of  the  association  shall 
have  free  access  to  all  such  premises  during  regular 
working  hours.  Any  subscriber  or  employe  aggrieved 
by  any  such  rule  or  regulation  may  petition  the  in- 
dustrial accident  board  for  a  review,  and  it  may  affirm, 
amend,  or  annul  the  rule  or  regulation. 

"  §  19.  If  any  officer  of  the  association  shall  falsely 
make  oath  to  any  certificate  required  to  be  filed  with 
the  insurance  commissioner,  he  shall  be  guilty  of 
perjury. 

"§20.  Every  subscriber  shall,  as  soon  as  he  secures 
a  policy,  give  notice,  in  writing  or  print,  to  all  persons 
under  contract  of  hire  with  him  that  he  has  provided 
for  payment  to  injured  employes  by  the  association. 

"§  21.  Every  subscriber  shall  give  notice  in  writing 
or  print  to  every  person  with  whom  he  is  about  to 
enter  into  a  contract  of  hire  that  he  has  provided  for 
payment  to  injured  employes  by  the  association.  If 
an  employer  ceases  to  be  a  subscriber  he  shall,  on  or 
before  the  day  on  which  his  policy  expires,  give  notice 
thereof  in  writing  or  print  to  all  persons  under  con- 
tract with  him.  In  case  of  the  renewal  of  the  policy 
no  notice  shall  be  required  under  the  provisions  of  this 
act.  He  shall  file  a  copy  of  said  notice  with  the  In- 
dustrial Accident  Board.  The  notices  required  by 
this  and  the  preceding  section  may  be  given  in  the 
manner  therein  provided  or  in  such  other  manner  as 
may  be  approved  in  the  Industrial  Accident  Board." 
(As  amended  by  L.  1912,  c.  571.) 

"§22.  If  a  subscriber,  who  has  compHed  with  all 


MANNER   OF   CREATING   INSURANCE   FUND  505 

Michigan 

the  rules,  regulations  and  demands  of  the  association, 
is  required  by  any  judgment  of  a  court  of  law  to  pay 
to  an  employ^  any  damages  on  account  of  personal 
injury  sustained  by  such  employ^  during  the  period 
of  subscription,  the  association  shall  pay  to  the  sub- 
scriber the  full  amount  of  such  judgment  and  the  cost 
assessed  therewith,  if  the  subscriber  shall  have  given 
the  association  notice  in  writing  of  the  bringing  of  the 
action  upon  which  the  judgment  was  recovered  and  an 
opportunity  to  appear  and  defend  the  same. 

"§23.  The  provisions  of  chapter  five  hundred  and 
seventy-six  of  the  acts  of  the  year  nineteen  hundred 
and  seven  and  of  acts  in  amendment  thereof  shall 
apply  to  the  association,  so  far  as  such  provisions  are 
pertinent  and  not  in  conflict  with  the  provisions  of 
this  act,  except  that  the  corporate  powers  shall  not 
expire  because  of  failure  to  issue  poUcies  or  make 
insurance. 

"§24.  The  board  of  directors  appointed  by  the 
governor  under  the  provisions  of  Part  IV,  section  two, 
may  incur  such  expenses  in  the  performance  of  its 
duties  as  shall  be  approved  by  the  governor  and 
council.  Such  expenses  shall  be  paid  from  the  treasury 
of  the  commonwealth  and  shall  not  exceed  in  amount 
the  sum  of  fifteen  thousand  dollars. 

MICHIGAN 

(L.  1912,  c.  000) 

"PART  IV 

"Method  of  Payment 

"§  1.  Every  employer  filing  his  election  to  become 
subject  to  the  provisions  of  this  act,  as  hereinbefore 
set  forth,  shall  have  the  right  to  specify  at  the  time  of 


506    Bradbury's  workmen's  compensation  law 

Michigan 

doing  so,  subject  to  the  approval  of  said  industrial 
accident  board,  which  of  the  following  methods  for 
the  payment  of  such  compensation  he  desires  to 
adopt,  to-wit: 

"First.  Upon  furnishing  satisfactory  proof  to  said 
board  of  his  solvency  and  financial  ability  to  pay  the 
compensation  and  benefits  hereinbefore  provided  for, 
to  make  such  payments  directly  to  his  employes,  as 
they  may  become  entitled  to  receive  the  same  under 
the  terms  and  conditions  of  this  act;  or 

"Second.  To  insure  against  such  liability  in  any 
employers'  liability  company  authorized  to  take  such 
risks  in  the  state  of  Michigan ;  or 

"Third.  To  insure  against  such  liability  in  any 
employers'  insurance  association  organized  under  the 
laws  of  the  state  of  Michigan;  or 

"Fourth.  To  request  the  commissioner  of  insurance 
of  the  state  of  Michigan  to  assume  the  administration 
of  the  disbursement  of  such  compensation  exclusive 
of  that  provided  for  in  part  two,  section  four  herein, 
and  the  collection  of  the  premiums  and  assessments 
necessary  to  pay  the  same,  as  provided  in  part  five 
hereof.  Said  board,  however,  shall  have  the  right, 
from  time  to  time  to  review  and  alter  its  decision  in 
approving  the  election  of  such  employer  to  adopt  any 
one  of  the  foregoing  methods  of  payment,  if  in  its 
judgment  such  action  is  necessary  or  desirable  to  se- 
cure and  safeguard  such  payments  to  employes. 

"§  2.  Nothing  herein  shall  affect  any  existing  con- 
tract for  employers'  liability  insurance  or  affect  the 
organization  of  any  mutual  or  other  insurance  com- 
pany, or  any  arrangement  now  existing  between  em- 
ployers and  employes,  providing  for  the  payment  to 
such  employes,  their  families,  dependents  or  represent- 
atives, sick,  accident  or  death  benefits,  in  addition  to 


MANNER   OF   CREATING   INSURANCE   FUND         507 

Michigan 

the  compensation  provided  for  by  this  act.  But 
HabiUty  for  compensation  under  this  act  shall  not  be 
reduced  or  affected  by  any  insurance,  contribution  or 
other  benefit  whatsoever,  due  to  or  received  by  the 
person  entitled  to  such  compensation,  and  the  person 
so  entitled  shall,  irrespective  of  any  insurance  or  other 
contract,  have  the  right  to  recover  the  same  directly 
from  the  employer;  and  in  addition  thereto,  the  right 
to  enforce  in  his  own  name  in  the  manner  provided  in 
this  act  the  liability  of  any  insurance  company  or  of 
any  employers'  association  organized  under  the  laws 
of  the  state  of  Michigan,  or  the  commissioner  of 
insurance,  who  may,  in  whole  or  in  part,  have  insured 
the  liability  for  such  compensation:  Provided,  how- 
ever. That  payment  in  whole  or  in  part  of  such  com- 
pensation by  either  the  employer,  or  the  insurance 
company  carrying  such  risk,  or  the  commissioner  of 
insurance,  as  the  case  may  be,  shall,  to  the  extent 
thereof  be  a  bar  to  recovery  against  the  other,  of  the 
amount  so  paid. 

"§3.  Every  contract  for  the  insurance  of  the 
compensation  herein  provided  for,  or  against  liability 
therefor,  shall  be  deemed  to  be  made  subject  to  the 
provisions  of  this  act,  and  provisions  thereof  incon- 
sistent with  this  act  shall  be  void.  No  company  shall 
enter  into  any  such  contract  for  insurance,  unless  such 
company  shall  have  been  approved  by  the  commis- 
sioner of  insurance  as  provided  by  law. 

"§4.  Any  employer  against  whom  liability  may 
exist  for  compensation  under  this  act  may,  with  the 
approval  of  the  industrial  accident  board,  be  relieved 
therefrom  by : 

"1.  Depositing  the  present  value  of  the  total  un- 
paid compensation  for  which  such  liability  exists, 
assuming  interest  at  three  per  centum  per  annimi, 


508    Bradbury's  workmen's  compensation  law 

Michigan 

with  such  trust  company  of  this  state  as  shall  be 
designated  by  the  employe,  or  by  his  dependents,  in 
case  of  his  death,  and  such  liability  exists  in  their 
favor,  or  in  default  of  such  designation  by  him,  or 
them,  after  ten  days'  notice  in  writing  from  the  em- 
ployer, with  such  trust  company  of  this  state  as  shall 
be  designated  by  the  industrial  accident  board;  or 

"2.  By  the  purchase  of  an  annuity,  within  the 
limitation  provided  by  law,  in  any  insurance  com- 
pany granting  annuities  and  licensed  in  this  state, 
which  may  be  designated  by  the  employe,  or  his  de- 
pendents, or  the  industrial  accident  board,  as  pro- 
vided in  subsection  one  of  this  section." 

"PART  V 

"Administration  by  Commissioner  of  Insurance 

"§  1.  Whenever  five  or  more  employers,  who  have 
become  subject  to  the  provisions  of  this  act,  and  who 
have  on  their  pay  rolls  an  aggregate  number  of  not 
less  than  three  thousand  employes,  shall  in  writing 
request  the  commissioner  of  insurance  so  to  do,  he 
shall  assume  charge  of  levying  and  collection  from 
them  such  premium  and  dividends  as  may  from  time 
to  time  be  necessary  to  pay  the  sums  which  shall 
become  due  their  employes,  or  dependents  of  their 
employes,  as  compensation  under  the  provisions  of 
this  act,  and  also  the  expense  of  conducting  the  ad- 
ministration of  such  funds;  and  shall  disburse  the 
same  to  the  persons  entitled  to  receive  such  compen- 
sation under  the  provisions  of  this  act:  Provided, 
however.  That  neither  the  commissioner  of  insurance 
nor  the  state  of  Michigan  shall  become  or  be  liable  or 
responsible  for  the  payment  of  claims  for  compensa- 
tion under  the  provisions  of  this  act  beyond  the  ex- 


MANNER   OF   CREATING    INSURANCE    FUND  509 

Michigan 

tent  of  the  funds  so  collected  and  received  by  him  as 
hereinafter  provided. 

"  §  2.  The  commissioner  of  insurance  shall  imme- 
diately upon  assuming  the  administration  of  the  collec- 
tion and  disbursement  of  the  moneys  referred  to  in 
the  preceding  section,  cause  to  be  created  in  the  state 
treasury  a  fund  to  be  known  as  "accident  fund." 
Each  such  employer  shall  contribute  to  this  fund  to 
the  extent  of  such  premiums  or  assessments  as  the 
commissioner  shall  deem  necessary  to  pay  the  com- 
pensation accruing  under  this  act  to  employes  of  such 
employers  or  to  their  dependents,  which  premiums 
and  assessments  shall  be  levied  in  the  manner  and 
proportion  hereinafter  set  forth.  The  commissioner 
of  insurance  shall  give  a  good  and  sufficient  bond  in 
the  sum  of  twenty-five  thousand  dollars,  executed  by 
some  surety  company  authorized  to  do  business  in 
the  state  of  Michigan,  covering  the  collection  and 
disbursement  of  all  moneys  that  may  come  into  his 
hands  under  the  provisions  of  this  act.  The  premium 
on  said  bond  shall  be  paid  out  of  the  general  funds  of 
the  state  on  an  order  of  the  auditor  general.  Said 
bond  must  be  approved  by  the  board  of  state  au- 
ditors. 

"  §  3,  It  is  the  intention  that  the  amounts  raised  for 
such  fund  shall  ultimately  become  neither  more  nor 
less  than  self-supporting,  and  the  premiums  or  assess- 
ments levied  for  such  purpose  shall  be  subject  to 
readjustment  from  time  to  time  by  the  commissioner 
of  insurance  as  may  become  necessary. 

"  §  4.  The  commissioner  of  insurance  may  classify 
the  establishments  or  works  of  such  employers  in 
groups  in  accordance  with  the  nature  of  the  business  in 
which  they  are  engaged  and  the  probable  risk  of  injury 
to  their  employes  under  existing  conditions.    He  shall 


510    Bradbury's  workmen's  compensation  law 

Michigan 

determine  the  amount  of  the  premiums  or  assessments 
which  such  employers  shall  pay  to  said  accident  fund, 
and  may  prescribe  when  and  in  what  manner  such 
premiums  and  assessments  shall  be  paid,  and  may 
change  the  amount  thereof  both  in  respect  to  any  or 
all  of  such  employers  from  time  to  time,  as  circum- 
stances may  require,  and  the  condition  of  their 
respective  plants,  establishments  or  places  of  work  in 
respect  to  the  safety  of  their  employes  may  justify, 
but  all  such  premiums  or  assessments  shall  be  levied 
on  a  basis  that  shall  be  fair,  equitable  and  just  as 
among  such  employers.  At  the  beginning  of  each 
fiscal  year  it  shall  be  the  duty  of  the  commissioner  of 
insurance  to  call  for  the  required  payment  of  pre- 
miums in  such  amounts  as  shall,  together  with  any 
balance  in  the  accident  fund,  in  his  judgment,  and 
subject  to  the  approval  of  said  industrial  accident 
board,  be  sufficient  to  enable  him  to  pay  all  sums 
which  may  become  due  and  payable  to  the  employes 
of  any  such  employer  who  has  become  subject  to  the 
provisions  of  part  five  of  this  act,  and  also  the  ex- 
penses of  administering  such  funds  during  the  follow- 
ing year. 

"§5.  If  any  employer  shall  make  default  in  the 
payment  of  any  contribution,  premium  or  assessment 
required  as  aforesaid  by  the  commissioner  of  insur- 
ance, the  sum  due  shall  be  collected  by  an  action  at 
law  in  the  name  of  the  state  as  plaintiff,  and  such 
right  of  action  shall  be  in  addition  to  any  other  right 
of  action  or  remedy.  In  case  any  injury  happens  to 
any  of  the  workmen  of  such  employer  during  the 
period  of  any  default  in  the  payment  of  any  such 
premium,  assessment  or  contribution,  the  defaulting 
employer  shall  not,  if  such  default  be  after  demand 
for  payment,  be  entitled  to  the  benefits  of  this  act, 


MANNER   OF   CREATING   INSURANCE   FUND         511 
Michigan 

but  shall  be  liable  to  suit  by  the  injured  workman,  or 
by  his  dependents  in  case  death  results  from  such 
accident,  as  if  he  had  not  elected  to  become  subject  to 
this  act.  In  case,  however,  the  amount  actually 
collected  in  by  such  injured  workman  or  his  depend- 
ents shall  equal  or  exceed  the  compensation  to  which 
the  plaintiff  therein  would  be  entitled  under  this  act, 
the  plaintiff  shall  not  be  paid  anything  out  of  said 
accident  fund.  If  the  said  amount  shall  be  less  than 
such  compensation  under  this  act,  the  accident  fund 
shall  contribute  the  amount  of  the  deficiency.  The 
person  so  entitled  under  the  provisions  of  this  section 
shall  have  the  choice,  to  be  exercised  before  suit,  of 
proceeding  by  suit  or  taking  under  this  act.  If  such 
person  shall  take  under  this  act,  the  cause  of  action 
against  the  employer  shall  be  assigned  to  the  state 
for  the  benefit  of  the  accident  fund. 

"§6.  Any  employer  subject  to  the  provisions  of 
part  five  of  this  act,  who  has  complied  with  all  the 
rules,  regulations  and  demands  of  the  industrial 
accident  board  and  the  commissioner  of  insurance, 
may  withdraw  therefrom  at  the  expiration  of  the 
period  of  one  year  for  which  he  has  elected  to  become 
subject  to  the  provisions  of  this  act:  Provided,  how- 
ever, That  he  shall  give  written  notice  of  such  with- 
drawal to  said  commissioner  of  insurance  at  least 
thirty  days  before  the  expiration  of  such  period:  And 
Provided  further,  That  if  at  the  time  of  such  with- 
drawal liability  may  exist  against  employer  for  com- 
pensation to  employes  who  have  been  theretofore 
killed  or  injured,  as  hereinbefore  provided,  such 
employer  shall  either  relieve  himself  and  the  com- 
missioner of  insurance  from  such  liability  in  the  man- 
ner provided  in  part  four,  section  four  of  this  act, 
or  shall  otherwise  protect  and  indemnify  said  com- 


512    Bradbury's  workmen's  compensation  law 

Michigan 

missioner  of  insurance  against  such  liability  in  such 
reasonable  manner  as  he  may  require. 

"  §  7.  In  case  any  controversy  shall  arise  between 
the  commissioner  of  insurance  and  any  employer  sub- 
ject to  the  provisions  of  part  five  of  this  act,  relative 
to  any  rule  or  regulation  adoyted  by  said  commissioner 
of  insurance,  or  any  decision  made  by  him  in  respect 
to  the  collection,  administration  and  disbursement  of 
such  funds,  or  in  case  any  controversy  shall  arise  be- 
tween any  employ^  claiming  compensation  under  the 
provisions  of  this  act  and  said  commissioner  of  in- 
surance, all  such  controversies  of  every  kind  and 
nature  shall  be  subject  to  review  in  like  manner  and 
with  the  same  force  and  effect  in  all  respects  as  is 
heretofore  provided  in  respect  to  differences  arising 
through  the  administration  of  such  funds  by  the 
employer,  or  by  a  liability  insurance  company  or  by 
an  employers'  mutual  insurance  association. 

"  §  8.  The  books,  records  and  pay  rolls  of  each  em- 
ployer subject  to  the  provisions  of  part  five  of  this  act 
shall  always  be  open  to  inspection  by  the  commissioner 
of  insurance,  or  his  duly  authorized  agent  or  represent- 
ative, for  the  purpose  of  ascertaining  the  correctness 
of  the  amount  of  the  pay  roll  reported,  the  number  of 
men  employed,  and  such  other  information  as  said 
commissioner  may  require  in  the  administration  of 
said  funds.  Refusal  on  the  part  of  any  such  employer 
to  submit  said  books,  records  and  pay  rolls  for  such 
inspection,  shall  subject  the  offending  employer  to  a 
penalty  of  fifty  dollars  for  each  offense,  to  be  collected 
by  civil  action  in  the  name  of  the  state  and  paid  unto 
the  accident  fund,  and  the  individual  who  shall  per- 
sonally give  such  refusal  shall  be  guilty  of  a  mis- 
demeanor. 

"§9.  The  commissioner  of  insurance  shall  issue 


MANNER   OF   CREATING    INSURANCE    FUND         513 
Michigan 

proper  receipts  for  all  moneys  so  collected  and  re- 
ceived from  employers,  as  aforesaid,  shall  take  receipts 
for  all  sums  paid  to  employes  for  compensation  under 
the  provisions  of  this  act,  and  shall  keep  full  and  com- 
plete records  of  all  business  transacted  by  him  in  the 
administration  of  such  funds.  He  may  employ  such 
deputies  and  assistants  and  clerical  help  as  may  be 
necessary,  and  as  the  board  of  state  auditors  may 
authorize,  for  the  proper  administration  of  said  funds 
and  the  performance  of  the  duties  imposed  upon  him 
by  the  provisions  of  this  act,  at  such  compensation 
as  may  be  fixed  by  said  board  of  state  auditors,  and 
may  also  remove  them.  The  commissioner  of  in- 
surance and  such  deputies  and  assistants  shall  be 
entitled  to  receive  from  the  state  their  actual  and 
necessary  expenses  while  traveling  on  the  business  of 
the  board,  but  all  such  salaries  and  expenses  so  au- 
thorized by  the  provisions  of  this  act  shall  be  charged 
to  and  paid  out  of  said  accident  fund.  He  shall  include 
in  his  annual  report  a  full  and  correct  statement  of  the 
administration  of  such  fund,  showing  its  financial 
status  and  outstanding  obligations,  the  claims  and 
the  amount  paid  on  each  claim,  claims  not  paid, 
claims  contested  and  why,  and  general  statistics  in 
respect  to  all  business  transacted  by  him  under  the 
provisions  of  this  act. 

"  §  10.  Disbursements  from  said  accident  fund  shall 
be  made  only  upon  warrants  approved  by  the  board 
of  state  auditors  upon  vouchers  therefor  transmitted 
to  it  by  the  commissioner  of  insurance.  If  at  any  time 
there  shall  not  be  sufficient  money  in  said  fund  where- 
with to  pay  the  same,  the  employer  on  account  of 
whose  workmen  it  was  that  such  warrant  was  drawn 
shall  pay  the  same,  and  he  shall  be  credited  upon  his 
next  following  contribution  to  such  fund  the  amount 
33 


514    Bradbury's  workmen's  compensation  law 

Ohio 

80  paid,  with  interest  thereon  at  the  legal  rate,  from 
the  date  of  such  payment  to  the  date  such  next  follow- 
ing contribution  becomes  payable,  and  if  the  amount 
of  the  credit  shall  exceed  the  amount  of  the  contribu- 
tion, he  shall  be  repaid  such  excess. 

"§  11.  If  this  act  shall  be  thereafter  repealed,  all 
moneys  which  are  in  the  accident  fund  at  the  time  of 
such  repeal  shall  be  subject  to  disposition  under  the 
direction  of  the  circuit  court  for  the  county  of  Ingham, 
with  due  regard,  however,  to  the  obligation  incurred 
and  existing  to  pay  compensation  under  the  pro- 
visions of  this  act." 

NEVADA 
(L.  1911,  0.  183) 

There  is  no  provision  in  the  Nevada  law  on  this  sub- 
ject. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

See  §  3  in  Chapter  II,  ante,  page  155,  which  requires 
an  employer  to  demonstrate  his  financial  ability  to 
comply  with  the  provisions  of  the  statute  or  give  a 
bond. 

NEW  JERSEY 
(L.  1911,  0.  95) 

New  Jersey  has  not  provided  for  any  form  of  State 
insurance  or  mutual  associations. 

OHIO 

'  (L.  1911,  c.  000) 

"§  17.  Classification  of  employments.  The  State 
Liability  Board  of  Awards  shall  classify  employments 


MANNER   OF   CREATING    INSURANCE    FUND  515 

Ohio 

with  respect  to  their  degree  of  hazard,  and  determine 
the  risks  of  the  different  classes  and  fix  the  rates  of 
premium  of  the  risks  of  the  same,  based  upon  the 
total  pay  roll  and  number  of  employes  in  each  of  said 
classes  of  employment,  sufficiently  large  to  provide  an 
adequate  fund  for  the  compensation  provided  for  in 
this  act,  and  to  create  a  surplus  sufficiently  large  to 
guarantee  a  state  insurance  fund  from  year  to  year. 

"§  18.  State  insurance  fund.  The  State  Liability 
Board  of  Awards  shall  establish  a  state  insurance  fund 
from  premiums  paid  thereto  by  employers  of  labor 
and  employes  as  herein  provided,  according  to  the 
rates  of  risk  in  the  classes  estabUshed  by  it,  as  herein 
provided,  for  the  benefits  of  employes  of  employers 
that  have  paid  the  premium  applicable  to  the  classes 
to  which  they  belong  and  for  the  benefit  of  the  de- 
pendents of  such  employes,  and  shall  adopt  rules  and 
regulations  with  respect  to  the  collection,  maintenance 
and  disbursement  of  said  fund. 

"§  19.  Custodian  of  fund.  The  treasurer  of  state 
shall  be  the  custodian  of  the  state  insurance  fund,  and 
all  disbursement  therefrom  shall  be  paid  by  him,  but 
upon  vouchers  signed  by  any  two  members  of  the 
State  Liability  Board  of  Awards. 

"§20.  Bond.  The  treasurer  of  state  shall  give  a 
separate  and  additional  bond,  in  such  amount  as  may 
be  fixed  by  the  governor,  and  with  sureties  to  his 
approval,  conditioned  for  the  faithful  performance  of 
his  duties  as  custodian  of  the  state  insurance  fund 
herein  provided  for. 

"§20-1.  Duties  of  employers  who  pay  fund.  Any 
employer  who  employs  five  or  more  workmen  or 
operatives  regularly  in  the  same  business,  or  in  or 
about  the  same  establishment  who  shall  pay  into  the 
state  insurance  fund  the  premiums  provided  by  this 


516     Bradbury's  workmen's  compensation  law 

Ohio 

act,  shall  not  be  liable  to  respond  in  damages  at  com- 
mon law  or  by  statute,  save  as  hereinafter  provided, 
for  injuries  or  death  of  any  such  employe,  wherever 
occurring,  during  the  period  covered  by  such  pre- 
miums, provided  the  injured  employ^  has  remained  in 
his  service  with  notice  that  his  employer  has  paid  into 
the  state  insurance  fund  the  premiums  provided  by 
this  act;  the  continuation  in  the  service  of  such  em- 
ployer with  such  notice,  shall  be  deemed  a  waiver  by 
the  employ^  of  his  right  of  action  as  aforesaid. 

Each  employer  paying  the  premiums  provided  by 
this  act  into  the  state  insurance  fund  shall  post  in 
conspicuous  places  about  his  place  or  places  of  busi- 
ness typewritten  or  printed  notices  stating  the  fact 
that  he  has  made  such  payment;  and  the  same,  when 
so  posted,  shall  constitute  sufficient  notice  to  his 
employes  of  the  fact  that  he  has  made  such  payment; 
and  of  any  subsequent  payments  he  may  make  after 
such  notices  have  been  posted. 

"  §  20-2.  Premiums  to  he  paid.  For  the  purpose  of 
creating  such  state  insurance  fund,  each  employer 
who  employs  five  or  more  workmen  or  operatives 
regularly  in  the  same  business,  or  in  or  about  the  same 
establishment,  and  his  employes  in  this  state,  having 
elected  to  accept  the  provisions  of  this  act,  shall  pay, 
on  or  before  January  1,  1912,  and  semi-annually 
thereafter,  the  premiums  of  liability  risk  in  the  classes 
of  employment  as  may  be  determined  and  published 
by  the  State  Liability  Board  of  Awards.  The  said 
employers  for  themselves  and  their  employes  shall 
make  such  payments  to  the  state  treasurer  of  Ohio, 
who  will  receive  and  place  the  same  to  the  credit  of 
such  state  insurance  fund.  The  premiums  provided 
for  in  this  act  shall  be  paid  by  the  employer  and  em- 
ployes in  the  following  proportions,  to  wit:  Ninety  per 


MANNER   OF   CREATING   INSURANCE    FUND         517 

Rhode  Island 

cent  of  the  premium  shall  be  paid  by  the  employer 
and  ten  per  cent  by  the  employes.  Each  employer 
is  authorized  to  deduct  from  the  pay  roll  of  his  em- 
ployes ten  per  cent  of  the  said  premiums  for  any 
premium  period  in  proportion  to  the  pay  roll  of  such 
employes;  no  deduction  shall  be  made  except  for  that 
portion  of  the  premium  period  antedating  such  pay 
roll.  Each  employer  shall  give  a  receipt  to  each  em- 
ploy6  showing  the  amount  which  has  been  deducted 
and  paid  into  the  state  insurance  fund. 

RHODE  ISLAND 

(L.  1912,  c.  000) 
"ARTICLE  IV 

"Alternative  Schemes  Permitted 

"§  1.  Employer  and  employe  may  agree.  Any  em- 
ployer may  enter  into  an  agreement  with  his  em- 
ployes in  any  employment  to  which  this  act  applies  to 
provide  a  scheme  of  compensation,  benefit,  or  insur- 
ance, in  lieu  of  the  compensation  provided  for  in  this 
act,  subject  to  the  approval  of  the  superior  court. 
Such  approval  shall  be  granted  only  on  condition  that 
the  scheme  proposed  provides  as  great  benefits  as 
those  provided  by  this  act;  and,  if  the  scheme  pro- 
vides for  contributions  by  employes,  it  shall  confer 
additional  benefits  at  least  equivalent  to  these  con- 
tributions. If  such  a  scheme  meets  with  the  approval 
of  said  court,  the  clerk  shall  issue  a  certificate  enabling 
the  employer  to  contract  with  any  or  all  of  his  em- 
ployes in  employments  to  which  this  act  applies  to 
substitute  such  scheme  for  the  provisions  of  this  act 
for  a  period  of  not  more  than  five  years. 

"§2.  Agreem£rU  must  contain.     No  scheme  which 


518    Bradbury's  workmen's  compensation  law 

Washington 

provides  for  contributing  by  employes  shall  be  so 
certified  which  does  not  contain  suitable  provisions 
for  the  equitable  distribution  of  any  money  or  se- 
curities held  for  the  purpose  of  the  scheme,  after  due 
provision  has  been  made  to  discharge  the  liabilities 
already  incurred,  if  and  when  such  certificate  is  re- 
voked or  the  scheme  otherwise  terminated. 

"§3.  Agreement  revoked.  If  at  any  time  the  scheme 
no  longer  fulfills  the  requirements  of  this  Article,  or  is 
not  fairly  administered,  or  any  other  valid  and  sub- 
stantial reason  therefor  exists,  the  superior  court,  on 
reasonable  notice  to  the  interested  parties,  shall  re- 
voke the  certificate  and  the  scheme  shall  thereby  be 
terminated." 

WASHINGTON 

(L.  1911,  c.  74) 

*'§4.  Schedule  of  contribution.  Insomuch  as  indus- 
try should  bear  the  greater  portion  of  the  burden 
of  the  costs  of  its  accidents,  each  employer  shall, 
prior  to  January  15th  of  each  year,  pay  into  the  state 
treasury,  in  accordance  with  the  following  schedule, 
a  sum  equal  to  a  percentage  of  his  total  pay  roll  for 
that  year,  to-wit:  (the  same  being  deemed  the  most 
accurate  method  of  equitable  distribution  of  burden 
in  proportion  to  relative  hazard) : 

"Construction  Work 

"Tunnels;  bridges;  trestles;  sub-aqueous  works; 
ditches  and  canals  (other  than  irrigation  with- 
out blasting);  dock  excavation;  fire  escapes; 
sewers;  house  moving;  house  wrecking 065 

"Iron,  or  steel  frame  structures  or  parts  of 
structures 080 

"Electric  light  or  power  plants  or  systems;  tele- 


MANNER   OF   CREATING   INSURANCE   FUND         519 
Washington 

graph  or  telephone  systems;  pile  driving; 
steam  railroads 050 

"Steeples,  towers  or  grain  elevators,  not  metal 
framed;  dry-docks  without  excavation;  jet- 
ties; breakwaters;  chimneys;  marine  railways; 
water- works  or  systems;  electric  railways 
with  rock  work  or  blasting;  blasting;  erecting 
fireproof  doors  or  shutters 050 

"Steam  heating  plants;  tanks,  water  towers  or 
wind-mills,  not  metal  frames 040 

"Shaft  sinking 060 

"Concrete  buildings;  freight  or  passenger  ele- 
vators; fireproofing  of  buildings;  galvanized 
iron  or  tin  works;  gas  works,  or  systems; 
marble,  stone  or  brick  work;  road  making 
with  blasting;  roof  work;  safe  moving;  slate 
work;  outside  plumbing  work;  metal  smoke- 
stacks or  chimneys 050 

"Excavations  not  otherwise  specified;  blast 
furnaces 040 

"Street  or  other  grading;  cable  or  electric  street 
railways  without  blasting;  advertising  signs; 
ornamental  metal  work  in  buildings 035 

"Ship  or  boat  building  or  wrecking  with  scaf- 
folds; floating  docks 045 

"Carpenter  work  not  otherwise  specified 035 

"Installation  of  steam  boilers  or  engines;  plac- 
ing wire  in  conduits;  instaUing  dynamos;  put- 
ting up  belts  for  machinery;  marble,  stone  or 
tile  setting,  inside  work;  mantle  setting; 
metal  ceiling  work;  mill  or  ship  wrighting; 
painting  of  buildings  or  structures;  installa- 
tion of  automatic  sprinklers;  ship  or  boat 
rigging;  concrete  laying  in  floors,  foundations 
or  street  paving;  asphalt  laying;   covering 


520    Bradbury's  workmen's  compensation  law 

Washington 

steam  pipes  or  boilers;  installation  of  machin- 
ery not  otherwise  specified 030 

"Drilling  wells;  installing  electrical  apparatus 
or  fire  alarm  systems  in  buildings;  house  heat- 
ing or  ventilating  systems;  glass  setting; 
building  hot  houses;  lathing;  paper  hanging; 
plastering;  inside  plumbing;  wooden  stair 
building;  road  making 020 

"Operation  (Including  Repair  Work)  of 

"  (All  combinations  of  material  take  the  higher  rate 

when  not  otherwise  provided.) 

"Logging  railroads;  railroads;  dredges;  inter- 
urban  electric  railroads  using  third  rail  sys- 
tem; dry  or  floating  docks 050 

"Electric  light  or  power  plants;  interurban 
electric  railroads  not  using  third  rail  system; 
quarries 040 

"Street  railways,  all  employes;  telegraph  or 
telephone  systems;  stone  crushing;  blasting 
furnaces;  smelters;  coal  mines;  gas  works; 
steamboats;  tugs;  ferries 030 

"Mines,  other  than  coal;  steam  heating  or 
power  plants 025 

"Grain  elevators;  laundries;  waterworks;  paper 
or  pulp  mills;  garbage  works 020 

'Factories  Using  Power-Driven  Machinery 

"Stamping  tin  or  metal 045 

"Bridge  work;  railroad  car  or  locomotive  mak- 
ing or  repairing;  cooperage;  logging  with  or 
1  without  machinery;  saw  mills;  shingle  mills; 

staves;  veneer;  box;  lath;  packing  cases; 
sash,  door  or  blinds;  barrel;  keg;  pail;  basket; 
tub;  wooden  ware  or  wooden  fiber  ware;  roll- 


MANNER   OF   CREATING   INSURANCE   FUND         521 

Washington 

ing  mills;  making  steam  shovels  or  dredges; 
tanks;  water  towers;  asphalt;  building  mate- 
rial not  otherwise  specified;  fertilizer;  cement; 
stone  with  or  without  machinery;  kindling 
wood;  masts  and  spars  with  or  without  ma- 
chinery; canneries,  metal  stamping  extra; 
creosoting  works;  pile  treating  works 025 

"Excelsior;  iron,  steel,  copper,  zinc,  brass  or 
lead  articles  or  wares  not  otherwise  specified; 
working  in  wood  not  otherwise  specified; 
hardware;  tile;  brick;  terra  cotta;  fire  clay; 
pottery;  earthenware;  porcelain  ware;  peat 
fuel;  brickettes 020 

"Breweries;  bottling  works;  boiler  works; 
foundries;  machine  shops  not  otherwise 
specified 020 

"Cordage;  working  in  food  stuffs,  including 
oils,  fruits  and  vegetables;  working  in  wool, 
cloth,  leather,  paper,  broom,  brush,  rubber 
or  textiles  not  otherwise  specified 015 

"Making  jewelry,   soap,   tallow,   lard,  grease, 

condensed  milk 015 

"Creameries;  printing;  electrotyping;  photo- 
engraving; lithographing 015 

"Miscellaneous  Work 

"Stevedoring;  longshoring 030 

"Operating  stock  yards,  with  or  without  rail- 
road entry;  packing  houses 025 

"Wharf  operation;  artificial  ice,  refrigerating  or 
cold  storage  plants;  tanneries;  electric  sys- 
tems not  otherwise  specified 020 

"Theater  stage  employes 015 

"Fire  works  manufacturing 050 

"  Powder  works 100 


522    Bradbury's  workmen's  compensation  law 

Washington 

"The  application  of  this  act  as  between  employers 
and  workmen  shall  date  from  and  include  the  first 
day  of  October,  1911.  The  payment  for  1911  shall 
be  made  prior  to  the  day  last  named,  and  shall  be  pre- 
liminarily collected  upon  the  pay  roll  of  the  last 
preceding  three  months  of  operation.  At  the  end  of 
each  year  an  adjustment  of  accounts  shall  be  made 
upon  the  basis  of  the  actual  pay  roll.  Any  shortage 
shall  be  made  good  on  or  before  February  1st,  follow- 
ing. Every  employer  who  shall  enter  into  business 
at  any  intermediate  day  shall  make  his  payment  for 
the  initial  year  or  portion  thereof  before  commencing 
operation;  its  amount  shall  be  calculated  upon  his 
estimated  pay  roll,  an  adjustment  shall  be  made  on  or 
before  February  1st  of  the  following  year  in  the  man- 
ner above  provided. 

"For  the  purpose  of  such  payments  accounts  shall 
be  kept  with  each  industry  in  accordance  with  the 
classification  herein  provided  and  no  class  shall  be 
liable  for  the  depletion  of  the  accident  fund  from 
accidents  happening  in  any  other  class.  Each  class 
shall  meet  and  be  liable  for  the  accidents  occurring 
in  such  class.  There  shall  be  collected  from  each  class 
as  an  initial  payment  into  the  accident  fund  as  above 
specified  on  or  before  the  1st  day  of  October,  1911, 
one-fourth  of  the  premium  of  the  next  succeeding 
year,  and  one-twelfth  thereof  at  the  close  of  each 
month  after  December,  1911:  Provided,  Any  class 
having  sufficient  funds  credited  to  its  account  at  the 
end  of  the  first  three  months  or  any  month  thereafter,  ■ 
to  meet  the  requirements  of  the  accident  fund,  that 
class  shall  not  be  called  upon  for  such  month.  In 
case  of  accidents  occurring  in  such  class  after  lapsed 
payment  or  payments  said  class  shall  pay  the  said 
lapsed  or  deferred  payments  commencing  at  the  first 


MANNER   OF   CREATING   INSURANCE    FUND  523 

Washington 

lapsed  payment,  as  may  be  necessary  to  meet  such 
requirements  of  the  accident  fund. 

"The  fund  thereby  created  shall  be  termed  the 
'accident  fund'  which  shall  be  devoted  exclusively 
to  the  purpose  specified  for  it  in  this  act. 

"In  that  the  intent  is  that  the  fund  created  under 
this  section  shall  ultimately  become  neither  more  of 
less  than  self  supporting,  exclusive  of  the  expense  or 
administration,  the  rates  in  this  section  named  are 
subject  to  future  adjustment  by  the  legislature,  and 
the  classifications  to  rearrangement  following  any 
relative  increase  or  decrease  of  hazard  shown  by  ex- 
perience. 

"  It  shall  be  imlawful  for  the  employer  to  deduct  or 
obtain  any  part  of  the  premium  required  by  this 
section  to  be  by  him  paid  from  the  wages  or  earnings 
of  his  workmen  or  any  of  them,  and  the  making  or 
attempt  to  make  any  such  deduction  shall  be  a  gross 
misdemeanor.  If,  after  this  act  shall  have  come  into 
operation,  it  is  shown  by  experience  under  the  act, 
because  of  poor  or  careless  management,  any  estab- 
lishment or  work  is  unduly  dangerous  in  comparison 
with  other  like  establishments  or  works,  the  depart- 
ment may  advance  its  classification  of  risks  and 
premium  rates  in  proportion  to  the  undue  hazard. 
In  accordance  with  the  same  principle,  any  such  in- 
crease in  classification  or  premium  rate,  shall  be  sub- 
ject to  restoration  to  the  schedule  rate.  Any  such 
change  in  classification  of  risks  or  premium  rates,  or 
any  change  caused  by  change  in  the  class  of  work, 
occurring  during  the  year  shall,  at  the  time  of  the 
annual  adjustment,  be  adjusted  by  the  department 
in  proportion  to  its  duration  in  accordance  with  the 
schedule  of  this  section.  If,  at  the  end  of  any  year, 
it  shall  be  seen  that  the  contribution  to  the  accident 


524    Bradbury's  workmen's  compensation  law 

Washington 

fund  by  any  class  of  industry  shall  be  less  than  the 
drain  upon  the  fund  on  account  of  that  class,  the 
deficiency  shall  be  made  good  to  the  fund  on  the  1st 
day  of  February  of  the  following  year  by  the  em- 
ployers of  that  class  in  proportion  to  their  respective 
payments  for  the  past  year. 

"For  the  purposes  of  such  payment  and  making 
good  of  deficit  the  particular  classes  of  industry  shall 
be  as  follows: 

"Construction  Work 

"Class  1.  Tunnels;  sewer;  shaft  sinking;  drilling 
wells. 

" Class  2.  Bridges;  mill  wrighting;  trestles;  steeples, 
towers  or  grain  elevators  not  metal  framed;  tanks, 
water  towers,  wind-mills  not  metal  framed. 

"Class  3.  Sub-aqueous  works;  canal  other  than 
irrigation  or  docks  with  or  without  blasting;  pile  driv- 
ing; jetties;  breakwaters;  marine  railways. 

"Class  4.  House  moving;  house  wrecking;  safe 
moving. 

"Class  5.  Iron  or  steel  frame  structures  or  parts  of 
structures;  fire  escapes;  erecting  fire-proof  doors  or 
shutters;  blast  furnaces;  concrete  chimneys;  freight 
or  passengers  elevators;  fire  proofing  of  buildings; 
galvanized  iron  or  tin  work;  marble,  stone  or  brick 
work;  roof  work;  slate  work;  plumbing  work;  metal 
smoke  stack  or  chimneys;  advertising  signs;  ornamen- 
tal metal  work  in  buildings;  carpenter  work  not  other- 
wise specified;  marble,  stone  or  tile  setting;  mantle 
setting;  metal  ceiling  work;  painting  of  buildings  or 
structures;  concrete  laying  in  floors  or  foundations; 
glass  setting;  building  hot  houses;  lathing;  paper 
hanging;  plastering;  wooden  stair  building. 

"Class  6.  Electric  light  and  power  plants  or  system; 


MAN'NER   OF    CREATING    INSURANCE    FUND  525 

Washington 

telegraph  or  telephone  systems;  cable  or  electric 
railways  with  or  without  rock  work  or  blasting;  water- 
works or  systems;  steam  heating  plants;  gas  works  or 
systems;  installation  of  steam  boilers  or  engines;  plac- 
ing wires  in  conduits;  installing  dynamos;  putting  up 
belts  for  machinery;  installation  of  automatic  sprink- 
lers; covering  steam  pipes  or  boilers;  installation  of 
machinery  not  otherwise  specified;  installing  electrical 
apparatus  or  fire  alarm  systems  in  buildings;  house 
heating  or  ventilating  systems. 

"Class  7.  Steam  railroads;  logging  railroads. 

"Class  8.  Road  making;  street  or  other  grading; 
concrete  laying  in  street  paving;  asphalt  laying. 

"Class  9.  Ship  or  boat  building  with  scaffolds; 
ship  wrighting;  ship  or  boat  rigging;  floating 
docks. 

"Operation  (Including  Repair  Work)  of 

"Class  10.  Logging;  saw  mills;  shingle  mills;  lath 
mills;  masts  and  spars  with  or  without  machinery. 

"Class  12.  Dredges;  dry  or  floating  docks 

"  Class  13.  Electric  light  or  power  plants  or  systems; 
steam  heat  or  power  plants  or  systems;  electric  systems 
not  otherwise  specified. 

"  Class  14.  Street  railwa;ys. 

"Class  15.  Telegraph  systems;  telephone  systems. 

"Class  16.  Coal  mines. 

"Class  17.  Quarries;  stone  crushing;  mines  other 
than  coal. 

"Class  18.  Blast  furnaces;  smelters;  rolling  mills. 

"Class  19.  Gas  works. 

"Class  20.  Steamboats;  tugs;  ferries. 

"Class  21.  Grain  elevators. 

"Class  22.  Laundries. 

"Class  23.  Water  works. 


526    Bradbury's  workmen^s  compensation  law 

Washington 

"Class  24.  Paper  or  pulp  mills. 
"Class  25.  Garbage  works;  fertilizer. 

"Factories  (Using  Power-Driven  Machinery) 

"Class  26.  Stamping  tin  or  metal. 

"Class  27.  Bridge  work;  making  steam  shovels  or 
dredges;  tanks;  water  towers. 

"Class  28.  Railroad  car  or  locomotive  making  or 
repairing. 

"Class  29.  Cooperage;  staves;  veneer;  box;  packing 
cases;  sash  [,]  door  or  blinds;  barrel;  keg;  pail;  basket; 
tub;  wood  ware  or  wood  fiber  ware;  kindling  wood; 
excelsior;  working  in  wood  not  otherwise  specified. 

"Class  30.  Asphalt. 

"Class  31.  Cement;  stone  with  or  without  machin- 
ery; building  material  not  otherwise  specified. 

"Class  32.  Canneries  of  fruits  or  vegetables. 

"Class  33.  Canneries  of  fish  or  meat  products. 

"Class  34.  Iron,  steel,  copper,  zinc,  brass  or  lead 
articles  or  wares;  hardware;  boiler  works;  founderies; 
machine  shops  not  otherwise  specified. 

"Class  35.  Tile;  brick;  terracotta;  fire  clay;  pottery; 
earthenware;  porcelain  ware." 

"Class  36.  Peat  fuel;  brickettes. 

"Class  37.  Breweries;  bottling  works. 

" Class  38.  Cordage;  working  in  wool,  cloth,  leather, 
paper,  brush,  rubber  or  textile  not  otherwise  specified. 

"Class  39.  Working  in  food  stuffs,  including  oils, 
fruits,  vegetables. 

"Class  40.  Condensed  milk;  creameries. 

"Class  41.  Printing,  electrotyping;  photo-engrav- 
ing; engraving;  lithographing;  making  jewelry. 

"Class  42.  Stevedoring;  longshoring;  wharf  opera- 
tion. 


MANNER   OF   CREATING   INSURANCE  .FUND         527 
Washington 

"Class  43.  Stock  yards;  packing  houses;  making 
soap,  tallow,  lard,  grease;  tanneries. 

"Class  44.  Artificial  ice,  refrigerating  or  cold  stor- 
age plants. 

"Class  45.  Theater  stage  employes. 

"Class  46.  Fire  works  manufacturing;  powder 
works. 

"Class  47.  Creosoting  works;  pile  treating  works. 

"If  a  single  establishment  or  work  comprises  sev- 
eral occupations  listed  in  this  section  in  different  risk 
classes,  the  premium  shall  be  computed  according  to 
the  pay  roll  of  each  occupation  if  clearly  separable; 
otherwise  an  average  rate  of  premium  shall  be  charged 
for  the  entire  establishment,  taking  into  considera- 
tion the  number  of  employes  and  the  relative  hazards. 
If  an  employer  besides  employing  workmen  in  extra 
hazardous  employment  shall  also  employ  workmen 
in  employments  not  extra  hazardous  the  provisions 
of  this  act  shall  apply  only  to  the  extra  hazardous 
departments  and  employments  and  the  workmen 
employed  therein.  In  computing  the  pay  roll  the 
entire  compensation  received  by  every  workman  em- 
ployed in  extra  hazardous  employment  shall  be  in- 
cluded, whether  it  be  in  the  form  of  salary,  wage, 
piece  work,  overtime,  or  any  allowance  in  the  way  of 
profit-sharing,  premium  or  otherwise,  and  whether 
payable  in  money,  board,  or  otherwise. 

"  §  5.  (e)  For  every  case  of  injury  resulting  in  death 
or  permanent  total  disability  it  shall  be  the  duty  of 
the  department  to  forthwith  notify  the  state  treasurer, 
and  he  shall  set  apart  out  of  the  accident  fund  a  sum 
of  money  for  the  case,  to  be  known  as  the  estimated 
lump  value  of  the  monthly  payments  provided  for  it, 
to  be  calculated  upon  the  theory  that  a  monthly  pay- 
ment of  twenty  dollars,  to  a  person  thirty  years  of  age, 


528    Bradbury's  workmen's  compensation  law 

Washington 

is  equal  to  a  lump  sum  payment,  according  to  the 
expectancy  of  life  as  fixed  by  the  American  Mortality 
Table,  of  four  thousand  dollars,  but  the  total  in  no 
case  to  exceed  the  sum  of  four  thousand  dollars. 
The  state  treasurer  shall  invest  said  sum  at  interest 
in  the  class  of  securities  provided  by  law  for  the  in- 
vestment of  the  permanent  school  fund,  and  out  of  the 
same  and  its  earnings  shall  be  paid  the  monthly  in- 
stallments and  any  lump  sum  payment  then  or  there- 
after arranged  for  the  case.  Any  deficiency  shall  be 
made  good  out  of,  and  any  balance  or  overplus  shall 
revert  to  the  accident  fund.  The  state  treasurer  shall 
keep  accurate  account  of  all  such  segregations  of  the 
accident  fund,  and  may  borrow  from  the  main  fund  to 
meet  monthly  payments  pending  conversion  into 
cash  of  any  security,  and  in  such  case  shall  repay  such 
temporary  loan  out  of  the  cash  realized  from  the 
security." 

"§  9.  Employer's  responsibility  for  safeguard.  If 
any  workman  shall  be  injured  because  of  the  ab- 
sence of  any  safeguard  or  protection  required  to  be 
provided  or  maintained  by,  or  pursuant  to,  any 
statute  or  ordinance,  or  any  departmental  regulation 
under  any  statute,  or  be,  at  the  time  of  the  injury,  of 
less  than  the  maximum  age  prescribed  by  law  for  the 
employment  of  a  minor  in  the  occupation  in  which 
he  shall  be  engaged  when  injured,  the  employer  shall, 
within  ten  days  after  demand  therefor  by  the  depart- 
ment, pay  into  the  accident  fund,  in  addition  to  the 
same  required  by  section  4  to  be  paid : 

"(a)  In  case  the  consequent  payment  to  the  work- 
man out  of  the  accident  fund  be  a  lump  sum,  a  sum 
equal  to  50  per  cent  of  that  amount. 

"  (b)  In  case  the  consequent  payment  to  the  work- 
man be  payable  in  monthly  payments,  a  sum  equal  to  ' 


MANNER   OF   CREATING   INSURANCE   FUND         529 
Washington 

50  per  cent  of  the  lump  value  of  such  monthly  pay- 
ment, estimated  in  accordance  with  the  rule  stated  in  §  7. 
"The  foregoing  provisions  of  this  act  shall  not  apply 
to  the  employer  if  the  absence  of  such  guard  or  pro- 
tection be  due  to  the  removal  thereof  by  the  injured 
workman  himself  or  with  his  knowledge  by  any  of 
his  fellow  workmen,  unless  such  removal  be  by  order 
or  direction  of  the  employer  or  superintendent  or 
foreman  of  the  employer,  or  any  one  placed  by  the 
employer  in  control  or  direction  of  such  workman. 
If  the  removal  of  such  guard  or  protection  be  by  the 
workman  himself  or  with  his  consent  by  any  of  his 
fellow  workmen,  unless  done  by  order  or  direction  of 
the  employer  or  the  superintendent  or  foreman  of  the 
employer,  or  any  one  placed  by  the  employer  in  con- 
trol, or  direction  of  such  workman,  the  schedule  of 
compensation  provided  in  §  5  shall  be  reduced  10  per 
cent  for  the  individual  case  of  such  workman. 

"§  15.  Inspection  of  employer's  books.  The  books, 
records  and  pay  rolls  of  the  employer  pertinent  to  the 
administration  of  this  act  shall  always  be  open  to 
inspection  by  the  department  or  its  traveling  auditor, 
agent  or  assistant,  for  the  purpose  of  ascertaining  the 
correctness  of  the  pay  roll,  the  men  employed,  and  such 
other  information  as  may  be  necessary  for  the  depart- 
ment and  its  management  under  this  act.  Refusal 
on  the  part  of  the  employer  to  submit  said  books, 
records  and  pay  rolls  for  such  inspection  to  any 
member  of  the  commission,  or  any  assistant  presenting 
written  authority  from  the  commission,  shall  subject 
the  offending  employer  to  a  penalty  of  one  hundred 
dollars  for  each  offense,  to  be  collected  by  civil  action 
in  the  name  of  the  state  and  paid  into  the  accident 
fund,  and  the  individual  who  shall  personally  give 
such  refusal  shall  be  guilty  of  misdemeanor." 
34 


530    Bradbury's  workmen's  compensation  law 

Wisconsin 

For  a  misrepresentation  as  to  a  pay  roll  an  employer 
is  subject  to  a  penalty  of  ten  times  the  amount  of  the 
difference  in  premium  paid  and  the  amount  the  em- 
ployer should  have  paid.  §  16.  See  Chapter  XXVIII, 
posty  page  534. 

WISCONSIN  ♦ 

(L.  1911,  c.  50) 

For  provision  as  to  mutual  insurance  companies 
and  plans  see  §  2394-26,  Chapter  XXXIII,  post, 
page  565. 


CHAPTER  XXVIII 

PENALTIES  FOR  FAILURE  TO  COMPLY  WITH  LAW 

Page  Page 

California 531     New  Hampshire 533 

Illinois 531     New  Jersey 533 

Kansas 532     Ohio 533 

Massachusetts 532     Rhode  Island 533 

Michigan 532     Washington 533 

Nevada 532     Wisconsin 534 

The  proceedings  in  an  arbitration  before  a  County- 
Court  judge  under  the  Workmen's  Compensation  Act, 
are  judicial  proceedings,  and  therefore  a  witness  who 
in  such  proceedings  gives  false  evidence  on  a  material 
question  may  be  indicated  for  perjury.  Rex  v.  Crossley 
(1909),  2  B.  W.  C.  C.  451. 

CALIFORNIA 

(L.  1911,  c.  399) 

The  statute  seems  to  contain  no  penalties  except  the 
abolition  of  common  law  defenses  when  an  employer 
fails  to  bring  himself  within  the  terms  of  the  act. 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  23.  Any  willful  neglect,  refusal,  or  failure  to  do 
the  things  required  to  be  done  by  any  section,  clause, 
or  provision  of  this  act,  on  the  part  of  the  person  or 
persons  herein  required  to  do  them,  or  any  violation 
of  any  of  the  provisions  or  requirements  hereof,  or 
531 


532    Bradbury's  avorkmen's  compensation  law 

Nevada 

any  attempt  to  obstruct  or  interfere  with  any  court 
officer,  member  of  an  arbitration  board  herein  provided 
for,  or  with  the  Secretary  of  the  Bureau  of  Labor 
Statistics  or  his  deputy,  in  the  discharge  of  the  duties 
herein  imposed  upon  any  of  them,  or  any  refusal  to 
comply  with  the  terms  of  this  act,  shall  be  deemed  a 
misdemeanor,  punishable  by  a  fine  of  not  less  than 
ten  dollars  nor  more  than  five  hundred  dollars,  at  the 
discretion  of  the  court." 

KANSAS 

(L.  1911,  c.  218) 

"§  3.  Reservation  of  penalties.  Nothing  in  this  act 
shall  affect  the  liability  of  the  employer  or  employ^ 
to  a  fine  or  penalty  under  any  other  statute." 

MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  IV,  §  19.  If  any  officer  of  the  (Massachu- 
setts Employes  Insurance)  Association  shall  falsely 
make  oath  to  any  certificate  required  to  be  filed  with 
the  insurance  commissioner,  he  shall  be  guilty  of 
perjury." 

MICHIGAN 

(L.  1912,  No.  3) 

Penalty  for  failure  of  employer  to  make  reports  to 
the  Industrial  Accident  Board  of  injuries  to  employes. 
See  Part  III,  §  17,  Chapter  XXIX,  post,  page  540. 

NEVADA 

(L.  1911,  c.  183) 

See  Chapter  I,  ante,  page  24,  for  penalty  for  failure 
to  adopt  provisions  of  law. 


PENALTIES    FOR    FAILURE    TO    COMPLY    WITH    LAW      533 

Washington 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

Failure  of  the  employer  to  make  reports  as  provided 
in  §  12  (see  Chapter  XXIX,  post,  page  541),  shall  be 
subject  to  the  provisions  of  §  2  of  the  Act.  See  Chap- 
ter II,  arUe,  page  154. 

NEW  JERSEY 

(L.  1911,  c.  95) 

The  penalty  for  failure  to  adopt  the  compensation 
features  of  the  act  are  that  common  law  defenses  are 
eliminated.    See  Chapter  I,  ante,  page  27. 

OHIO 

(L.  1911,  c.  000) 

"§38.  Juries  not  to  consider  ad.  No  provision 
of  this  act  relating  to  the  amount  of  compensation 
shall  be  considered  by,  or  called  to  the  attention  of 
the  jury  on  the  trial  of  any  action  to  recover  damages 
as  herein  provided." 

RHODE  ISLAND 

(L.  1912,  c.  000) 
No  special  provision  in  the  Act  on  this  subject. 

WASHINGTON 

(L.  1911,  c.  74) 

In  case  of  injury  because  of  absence  of  safeguard  re- 
quired by  statute  certain  penalties  by  way  of  additional 
payments  are  prescribed.  See  §  9,  reprinted  in  Chap- 
ter XXVII,  ante,  page  528. 


534    Bradbury's  workmen's  compensation  law 

Wisconsin 

In  case  the  employer  defaults  in  paying  the  assess- 
ment to  the  insurance  fund  the  workman  has  a  common- 
law  right  of  action,  with  all  common-law  defenses  re- 
moved.   See  §  8,  reprinted  in  Chapter  I,  ante,  page  35. 

"§  16.  Penalty  for  misrepresentation  as  to  pay  roll. 

Any  employer  who  shall  misrepresent  to  the  depart- 
ment the  amount  of  pay  roll  upon  which  the  premium 
under  this  act  is  based  shall  be  liable  to  the  state  in 
ten  times  the  amount  of  the  difference  in  premium 
paid  and  the  amount  the  employer  should  have  paid. 
The  liabiUty  to  the  state  under  this  section  shall  be 
enforced  in  a  civil  action  in  the  name  of  the  state.  All 
sums  collected  under  this  section  shall  be  paid  into  the 
accident  fund." 

An  employer  who  refuses  to  submit  his  books,  records 
and  pay  rolls  to  inspection  is  guilty  of  a  misdemeanor. 
§  15.    See  Chapter  XXVII,  ante,  page  529. 

WISCONSIN 

(L.  1911,  c.  50) 

The  board  may  increase  an  award  25  per  cent  for 
failure  to  pay  temporary  compensation  pending  the 
determination  of  a  controversy.  §§  2394-17.  Chap- 
ter XXIV,  ante,  page  449. 


CHAPTER  XXIX 

REPORTS  OF  INJURIES  AND  AWARDS 

Page  Page 

California 535  New  Hampshire 541 

Illinois 538  New  Jersey 541 

Kansas 539  Ohio 542 

Massachusetts 539  Rhode  Island 545 

Michigan 540  Washington 546 

Nevada 541  Wisconsin 546 

CALIFORNIA 

(L.  1911,  c.  399;  L.  1911,  c.  53) 

At  a  special  session  of  the  Legislature  in  1911  an  Act 
known  as  Chapter  53  of  that  year  was  passed  and  ap- 
proved by  the  governor,  reading  as  follows: 

"§  1.  Every  employer  of  labor  in  this  State  shall 
keep  a  full,  true  and  correct  record  of  every  personal 
injury  suffered  by  his  or  its  employes,  arising  out  of 
or  in  the  course  of  the  employment,  and  resulting  in 
death,  or  in  disability  extending  over  a  period  of  a 
week  or  more.  Within  fifteen  days  after  the  happen- 
ing of  any  such  personal  injury,  a  written  report 
thereof  shall  be  mailed  by  the  employer  to  the  indus- 
trial accident  board  informally,  or  on  blanks  to  be 
provided  by  said  board  for  this  purpose.  The  said 
report  shall  contain  the  name  of  the  employer,  loca- 
tion of  place  of  employment,  nature  of  employment, 
name,  address,  age,  nationality,  sex  and  occupation 
of  the  injured  person,  length  of  time  the  injured  person 
had  worked  at  the  particular  employment  previous 
535 


536    Bradbury's  workmen's  compensation  law 

California 

to  injury,  date  and  hour  of  the  day  or  night  of  the 
accident,  the  hour  at  which  the  injured  employ 6 
began  work  on  the  date  of  the  accident,  nature  of  the 
injury,  cause  of  the  injury  and  rate  of  wages  of  the 
injured  employ^. 

"  §  2.  Upon  the  termination  of  the  disability  of  the 
injured  employ^  or  at  the  expiration  of  sixty  days 
from  the  date  of  the  accident,  if  the  disability  should 
extend  beyond  such  period,  the  employer  shall  mail 
to  the  industrial  accident  board  a  supplemental  re- 
port in  relation  to  such  disability,  informally  or  on 
blanks  to  be  provided  by  said  board  for  this  purpose. 
Such  report  must  contain  complete  statements  as  to 
any  claim  made  by  the  injured  employ 6  for  indem- 
nification for  the  injury  sustained,  payment  made  to 
him  or  in  his  behalf  for  medical,  surgical  or  other  care, 
claim  for  compensation  or  damages  made  for  such 
injuries  and  any  compromise  or  settlement  of  claim 
for  compensation  or  damages  entered  into  between 
the  employer  and  such  injured  employe,  his  heirs, 
dependents  or  legal  representative.  In  the  event 
that  any  payment  shall  be  made  to  such  injured  em- 
ploy6,  or  his  dependents  at  any  time  thereafter,  in 
compromise  or  settlement  of  a  claim  for  compensation 
or  damages,  the  amount  of  such  payment  shall  be 
forthwith  reported  by  the  employer  to  the  industrial 
accident  board. 

"  §  3.  Every  physician  who  attends  any  such  injured 
employ^  shall  keep  a  record  of  his  case.  Within  ten 
days  from  the  date  of  his  first  attendance  upon  the 
injured  employ^,  he  shall  mail  to  the  industrial  ac- 
cident board  a  report,  informally  or  on  blanks  to  be 
provided  by  the  said  board  for  this  purpose.  The 
said  report  shall  contain  the  name  and  address  of  the 
employer,  name,  address,  sex  and  age  of  the  injured 


REPORTS   OF   INJURIES   AND   AWARDS  537 

California 

employe,  date  of  accident,  description  of  the  injury, 
probable  nature  and  extent  of  disability.  Upon  the 
termination  of  the  disability  of  the  injured  employ^ 
or  the  termination  of  said  physician's  attendance 
upon  his  case,  he  shall  forthwith  mail  to  the  indus- 
trial accident  board  a  supplemental  report  in  relation 
to  such  case  describing  the  physical  condition  of  the 
injured  employ^,  his  disability,  convalescence  or  dis- 
charge from  the  doctor's  care. 

"  §  4.  Every  person,  firm,  association  or  corporation 
insuring  against  the  liability  of  employers  for  damages 
or  compensation  for  personal  injury  to  employes  or 
indemnifying  any  employer  for,  or  on  account  of  any 
such  liability  shall  keep  a  record  thereof,  and  shall 
within  the  first  five  days  of  each  and  every  month, 
report  in  writing  to  the  industrial  accident  board, 
informally  or  on  blanks  to  be  provided  by  said  board 
for  this  purpose,  every  such  injury  to  employes  re- 
ported to  it,  every  claim  for  damages  or  compensation 
for  such  injury  filed  with  such  person,  firm,  association 
or  corporation  and  any  settlement  or  compromise  of 
any  such  claim  for  damages  or  compensation  whether 
made  with  such  injured  employ^,  his  heirs,  dependents 
or  legal  representative. 

"§  5.  Every  employer,  physician  or  insurance  com- 
pany, firm  or  association,  shall  furnish  to  the  indus- 
trial accident  board  all  further  information  required 
by  it  in  order  to  constitute  a  substantially  complete 
and  accurate  history  of  each  injury  and  the  damages 
or  compensation  paid  therefor. 

"§  6.  The  record  required  to  be  kept  in  pursuance 
of  the  provisions  of  this  act  shall  at  all  times  be  open 
to  inspection  of  the  industrial  accident  board  or  any 
member  thereof,  or  any  examiner  appointed  thereby. 
Any  statement  contained  in  such  report  shall  not  be 


538    Bradbury's  workmen's  compensation  law 

Illinois 

admissible  as  evidence  in  any  action  arising  out  of 
the  death  or  injury  of  any  employ^  by  reason  of  the 
accident  reported. 

"§  7.  It  shall  be  unlawful  for  any  person,  firm,  cor- 
poration, agent,  or  officer  of  a  firm  or  corporation  to 
fail,  neglect  or  refuse  to  comply  with  any  of  the  pro- 
visions of  this  act.  Any  person,  firm,  corporation, 
agent  or  officer  of  a  firm  or  corporation  that  violates 
or  omits  to  comply  with  any  of  the  provisions  of  this 
act,  shall  be  guilty  of  a  misdemeanor  for  each  and 
every  offense  and  shall  be,  upon  conviction  thereof, 
punishable  by  fine  of  not  less  than  ten  dollars  or  more 
than  one  hundred  dollars  or  by  imprisonment  for  not 
more  than  thirty  days,  or  by  both  such  fine  and  im- 
prisonment. 

"§  8.  Nothing  in  this  act  shall  apply  to  employers 
of  labor  engaged  in  farming,  dairying,  agricultural  or 
horticultural  pursuits,  in  poultry  raising  or  domestic 
service. 

ILLINOIS 

(L.  1911,  c.  000) 

"§  19.  It  shall  be  the  duty  of  every  employer  within 
the  provisions  of  this  Act  to  send  to  the  Secretary  of 
the  State  Bureau  of  Labor  Statistics  in  writing  an 
immediate  report  of  all  accidents  or  injuries  arising 
out  of  or  in  the  course  of  the  employment  and  resulting 
in  death;  it  shall  also  be  the  duty  of  every  such  em- 
ployer to  report  between  the  fifteenth  and  the  twenty- 
fifth  of  each  month  to  the  Secretary  of  the  State 
Bureau  of  Labor  Statistics  all  accidents  or  injuries 
for  which  compensation  has  been  paid  under  this  Act, 
which  accidents  or  injuries  entail  a  loss  to  the  em- 
ploy6  of  more  than  one  week's  time,  and  in  case  tho 
injury  results  in  permanent  disability,  such  report 


KEPORTS   OF   INJURIES   AND   AWARDS  539 

Massachusetts 

shall  be  made  as  soon  as  it  is  determined  that  such 
permanent  disability  has  resulted  or  will  result  from 
such  injury.  All  such  reports  shall  state  the  date  of 
the  injury,  including  the  time  of  day  or  night,  the 
nature  of  the  employer's  business,  the  age,  sex,  con- 
jugal condition  of  the  injured  person,  the  specific 
occupation  of  the  injured  person,  the  direct  cause  of 
the  injury  and  the  nature  of  the  accident,  the  nature 
of  the  injury,  the  length  of  disability  and,  in  case  of 
death,  the  length  of  disability  before  death,  the  wages 
of  the  injured  person,  whether  compensation  has  been 
paid  to  the  injured  person,  or  to  his  legal  representa- 
tive or  his  heirs  or  next  of  kin,  the  amount  of  compen- 
sation paid,  the  amount  paid  for  physicians',  surgeons' 
and  hospital  bills,  and  by  whom  paid,  and  the  amount 
paid  for  funeral  or  burial  expenses,  if  known.  The 
making  of  reports  as  provided  herein  shall  release  the 
employer  covered  by  the  provisions  of  this  Act,  from 
making  reports  to  any  other  officer  of  the  State." 

KANSAS 

(L.  1911,  c.  218) 
"§  16.  Reports  as  to  accidents  and  compensation. 
Employers  affected  by  this  act  shall  report  annually 
to  the  state  commissioner  and  factory  inspector  such 
reasonable  particulars  in  regard  thereto  as  he  may 
require,  including  particulars  as  to  all  releases  of  lia- 
bility under  this  act  and  any  other  law.  The  penalty 
for  failure  to  report  or  for  false  report  shall  invalidate 
any  such  release  of  liabiUty." 

MASSACHUSETTS 
(L.  1911,  c.  751) 
"Part  III,  §  18.  Every  employer  shall  hereafter 
keep  a  record  of  all  injuries,  fatal  or  otherwise,  re- 


540    Bradbury's  workmen's  compensation  law 


Michigan 


ceived  by  his  employes  in  the  course  of  their  em- 
ployment. Within  forty-eight  hours,  not  counting 
Sundays  and  legal  holidays,  after  the  occurrence  of  an 
accident  resulting  in  personal  injury,  a  report  thereof 
shall  be  made  in  writing  to  the  industrial  accident 
board  on  blanks  to  be  procured  from  the  board  for 
the  purpose.  Upon  the  termination  of  the  disability 
of  the  injured  employ 6  or,  if  such  disability  extends 
beyond  a  period  of  sixty  days  at  the  expiration  of 
such  period,  the  employer  shall  make  a  supplemental 
report  on  blanks  to  be  procured  from  the  board  for 
that  purpose.  The  said  reports  shall  contain  the 
name  and  nature  of  the  business  of  the  employer, 
the  location  of  the  establishment,  the  name,  age,  sex 
and  occupation  of  the  injured  employe,  and  shall  state 
the  date  and  hour  of  the  accident,  the  nature  and 
cause  of  the  injury,  and  such  other  information  as 
may  be  required  by  the  board.  Any  employer  who 
refuses  or  neglects  to  make  the  report  required  by  this 
section  shall  be  punished  by  a  fine  of  not  more  than 
fifty  dollars  for  each  offense." 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  III,  §  17.  Every  employer  shall  hereafter 
keep  a  record  of  all  injuries,  fatal  or  otherwise,  re- 
ceived by  his  employes  in  the  course  of  their  employ- 
ment. Within  ten  days  after  the  occurrence  of  an 
accident  resulting  in  personal  injury  a  report  thereof 
shall  be  made  in  writing  to  the  industrial  accident 
board  on  blanks  to  be  procured  from  the  board  for 
that  purpose.  The  said  reports  shall  contain  the 
name  and  nature  of  the  business  of  the  employer,  the 
location  of  his  establishment  or  place  of  work,  the 


REPORTS   OF   INJURIES   AND   AWARDS  541 

New  Jersey 

name,  age,  sex  and  occupation  of  the  injured  employ^, 
and  shall  state  the  time,  the  nature  and  cause  of  the 
injury,  and  such  other  information  as  may  be  required 
by  the  board.  Any  employer  who  refuses  or  neglects 
to  make  the  report  required  by  this  section  shall  be 
punished  by  a  fine  of  not  more  than  fifty  dollars  for 
each  offense." 

NEVADA 

(L.  1911,  c.  183) 

There  are  no  provisions  in  the  Nevada  Law  on  this 
subject. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"§  12.  Every  employer  subject  to  the  provisions 
of  this  act,  shall  from  time  to  time  make  to  the  Com- 
missioner of  Labor  such  returns  as  to  its  operation 
as  said  commissioner  may  require  upon  blanks  to 
be  furnished  by  said  commissioner.  Any  employer 
failing  to  make  such  returns  when  required  by  said 
commissioner  shall,  until  such  returns  are  made,  be 
subject  to  the  provisions  of  section  2  of  this  act."  * 

NEW  JERSEY 

(L.  1911,  c.  95) 

Chapter  241  of  the  Laws  of  1911.    "  An  Act  creating 
the  Employers'  Liability  Commission,  etc.,  *  *  *  " 

"2.  From  and  after  the  fourth  day  of  July  next, 

when  the  said  law  becomes  operative,  every  employer 

of  labor  within  the  state  of  New  Jersey  shall  report  to 

said  commission  upon  the  occurrence  of  any  injury  to 

1  See  Chapter  II,  ante,  page  154. 


542    bkadbury's  workmen's  compensation  law 

Ohio 

any  of  his  employes  the  name  and  nationaUty  of  the 
employe  so  injured,  the  nature  and  extent  of  such  in- 
jury, whether  said  injured  employe  and  the  employer 
■  at  the  time  of  said  injury  were  subject  to  the  provi- 
sions of  section  one  or  section  two  of  said  act,  and  the 
amount  of  compensation  when  determined,  together 
with  such  other  facts  relating  to  such  injury  as  the 
commission  may  request.  The  information  thus  re- 
ceived shall  be  tabulated,  from  time  to  time,  and  the 
records  thereof  shall  be  the  private  records  of  the 
commission;  they  shall  not  be  made  public  or  open  to 
inspection  unless  in  the  opinion  of  the  commission  the 
public  interests  shall  require  it  and  they  shall  not  be 
used  as  evidence  against  any  employer  in  any  suit  or 
action  at  law  brought  by  any  employ^  for  the  re- 
covery of  damages.  The  commission  shall  hold  meet- 
ings, from  time  to  time,  as  they  may  deem  necessary, 
and  shall  present  to  each  session  of  the  Legislature  a 
report  showing  the  operations  under  the  said  act  dur- 
ing the  preceding  year,  together  with  any  suggestions 
or  recommendations  which  they  may  deem  necessary 
or  proper  for  the  improvement  of  the  said  act,  in  order 
to  accomplish  with  the  greatest  eflficiency  the  purposes 
of  the  said  act." 

(See  L.  1912,  c.  156,  requiring  insurance  companies 
also  to  make  reports.) 

OHIO 

(L.  1911,  c.  000) 

'  "  §  9.  Furnishing  information.  Every  employer 
shall  furnish  the  Board,  upon  request,  all  information 
required  by  it  to  carry  out  the  purposes  of  this  act. 
The  Board  or  any  member  thereof,  or  any  person 
employed  by  the  Board  for  that  purpose,  shall  have 


REPORTS   OF   INJURIES   AND   AWARDS  543 

Ohio 

the  right  to  examine  under  oath  any  employer  or 
officer,  agent  or  employ^  thereof. 

"§  10.  Blanks.  Every  employer  receiving  from  the 
Board  any  blank  with  directions  to  fill  the  same, 
shall  cause  the  same  to  be  properly  filled  out  as  to 
answer  fully  and  correctly  all  questions  therein  pro- 
pounded, and  if  unable  to  do  so  shall  give  good  and 
sufficient  reasons  for  such  failure.  Answers  to  such 
questions  shall  be  verified  under  oath  and  returned  to 
the  Board  within  the  period  fixed  by  the  Board  for 
such  return." 

"§  39.  Reports  of  board.  Annually  on  or  before  the 
15th  day  of  November,  such  Board,  under  the  oath  of 
at  least  two  of  its  members,  shall  make  a  report  to  the 
Governor  which  shall  include  a  statement  of  the  num- 
ber of  awards  made  by  it,  and  a  general  statement  of 
the  causes  of  the  accidents  leading  to  the  injuries  for 
which  the  awards  were  made,  a  detailed  statement  of 
the  disbursements  from  the  expense  fund,  and  the 
condition  of  its  respective  funds,  together  with  any 
other  matters  which  such  Board  deems  it  proper  to 
call  to  the  attention  of  the  Governor,  including  any 
recommendations  it  may  have  to  make." 

"Chapter— Laws  of  1911 

"(Senate  Bill  No.  61.) 

"An  Act 

"To  amend  sections  1003  and  1004  of  the  general 

code,  providing  for  the  regulation  of  workshops  and 

factories. 
"Be  it  enacted  by  the  General  Assembly  of  the  State  of 

Ohio: 

"§  1.  That  sections  1003  and  1004  of  the  general 
code  be  amended  so  as  to  read  as  follows: 


544    Bradbury's  workmen's  compensation  law 

Ohio 

"§  1003.  Every  manufacturer  of  the  state  shall 
within  three  days  after  the  happening  of  any  accident 
in  his  establishment  resulting  in  death,  or  bodily  in- 
jury of  such  a  nature  that  the  person  injured  does  not 
return  to  his  or  her  employment  in  said  establishment 
within  two  or  more  days  after  the  occurrence  of  the 
accident,  shall  forward  by  mail  to  the  chief  inspector 
of  workshops  and  factories  a  report  containing  the 
following  particulars  in  full: 

"1.  Name  and  address  of  manufacturer,  (person, 
firm  or  corporation). 

"2.  Nature  of  business  in  which  manufacturer  is 
engaged  and  place  where  accident  occurred. 

"3.  Name,  address,  sex,  age  and  kind  of  employ- 
ment of  person  killed  or  injured  and  whether  such  per- 
son is  married  or  single. 

"4.  Time  of  day  deceased  began  work  on  day  of 
accident,  time  of  day  accident  occurred,  and  date  of 
accident  or  death. 

"5.  At  what  employed  when  killed  or  injured, 
whether  such  person  was  familiar  with  the  work  at 
which  engaged  or  the  machinery  which  he  was  operat- 
ing and  whether  such  machinery  was  in  good  order 
and  guarded  so  as  to  prevent  accident  under  ordinary 
circumstances.  If  such  machinery  was  not  guarded, 
reasons  for  not  guarding  the  same. 

"6.  Description  of  manner  in  which  such  person 
was  killed  or  injured. 

"7.  Description  of  nature  and  extent  of  injury. 

"8.  Number  of  persons  deprived  of  support  in  con- 
sequence of  such  death  or  injury. 

"Such  manufacturer  shall,  in  all  cases  of  death 
within  six  months  after  the  accident,  or  in  case  the 
person  injured  returns  to  work  in  his  establishment 
within  six  months  after  the  accident,  forward  by  mail 


REPORTS   OF   INJURIES   AND   AWARDS  545 

Rhode  Island 

to  the  chief  inspector  of  workshops  and  factories 
within  five  days  after  such  death  or  such  return  to 
work,  or  in  case  of  no  death  or  return  to  work  within 
six  months,  then  within  five  days  after  the  expiration 
of  such  six  months,  a  supplemental  report  which  shall 
contain  the  following  particulars  in  full : 

"1.  Name  and  address  of  manufacturer. 

"2.  Name,  sex  and  age  of  person  injured  and  date 
and  place  where  accident  occurred. 

"3.  A  correct  statement  of  the  amount  of  wages 
paid  to  such  person  at  the  time  of  such  injury  and  the 
amount  of  wages  lost  during  the  period  between  the 
time  of  such  accident  and  the  time  of  forwarding  such 
supplemental  report. 

"4.  The  amount  of  compensation  paid  by  such 
manufacturer  by  reason  of  such  injury  or  death,  the 
names  of  persons  to  whom  such  compensation  was 
paid  and  a  statement  of  reasons  for  paying  such 
amounts  to  such  persons. 

"§  1004.  Whoever  violates  or  fails  to  comply  with 
any  requirement  of  the  preceding  section  shall  be 
fined  not  less  than  fifty  dollars,  nor  more  than  one 
hundred  dollars  for  the  first  offense,  and  not  less  than 
two  hundred  dollars  nor  more  than  five  hundred  dol- 
lars for  each  subsequent  offense. 

"§  2.  That  sections  1003  and  1004  of  the  general 
code  of  Ohio  are  hereby  repealed. 

"Approved  April  8,  1911." 

RHODE  ISLAND 

(L.  1912,  c.  571) 
There  is  no  provision  in  the  Act  on  this  subject. 


35 


646    Bradbury's  workmen's  compensation  law 

Wisconsin 

WASHINGTON 

(L.  1911,  c.  74) 

"§  14.  Notice  of  accident.  Whenever  any  accident 
occurs  to  any  workman  it  shall  be  the  duty  of  the 
employer  to  at  once  report  such  accident  and  the 
injury  resulting  therefrom  to  the  department,  and 
also  to  any  local  representative  of  the  department. 
Such  report  shall  state: 

"  1.  The  time,  cause  and  nature  of  the  accident  and 
injuries,  and  the  probable  duration  of  the  injury  re- 
sulting therefrom. 

"2.  Whether  the  accident  arose  out  of  or  in  the 
course  of  the  injured  person's  employment. 

"3.  Any  other  matters  the  rules  and  regulations  of 
the  department  may  prescribe." 

WISCONSIN 

(L.  1911,  c.  50) 

There  does  not  seem  to  be  any  provision  of  the  Act 
requiring  accident  reports  but  such  reports  are  re- 
quired of  employers  and  insurance  companies. 


CHAPTER  XXX 

WHEN  LAWS  BECOME  EFFECTIVE 

Page  Page 

California 547     New  Hampshire 549 

Illinois 547     New  Jersey 549 

Kansas 547     Ohio 549 

Massachusetts 548     Rhode  Island 549 

Michigan 548     Washington 549 

Nevada 549     Wisconsin 550 

CALIFORNIA 

(L.  1911,  c.  399) 

"§  31.  This  act  shall  take  effect  and  be  in  force  on 
and  after  the  first  day  of  September,  A.  D.  1911." 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  25.  This  Act  shall  take  effect  and  be  in  force  on 
and  after  the  first  day  of  May,  1912. 

"Approved  by  Governor,  June  10th,  1911." 

KANSAS 

(L.  1911,  c.  218) 

r  "§49.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  publication  in  the  statute  book,  and  the 
first  day  of  January,  1912. 

"Approved  by  Governor,  March  15,  1911." 
547 


548    Bradbury's  workmen's  compensation  law 

Michigan 


MASSACHUSETTS 

(L.  1911,  c.  751) 

"Part  V,  §  6.  Part  IV  ^  of  this  act  shall  take  effect 
on  the  first  day  of  January,  nineteen  hundred  and 
twelve;  sections  one  to  three  inclusive  of  Part  III 
shall  take  effect  on  the  tenth  day  of  May,  nineteen 
hundred  and  twelve  (as  amended  by  L.  1912,  c.  571) ; 
the  remainder  thereof  shall  take  effect  on  the  first  day 
of  July,  nineteen  hundred  and  twelve. 

House  of  Representatives. 

July  28,  1911 
Passed  to  be  enacted. 

Joseph  Walker, 

Speaker. 
In  Senate,  July  28,  1911. 
Passed  to  be  enacted, 

Allen  T.  Treadway, 

President. 


July  28,  1911. 


Approved, 

Eugene  N.  Foss. 


MICHIGAN 

(L.  1912,  No.  3) 

"Part  VI,  §  8.  The  provisions  of  this  act  shall  take 
effect  and  be  in  force  from  and  after  September  first, 
nineteen  hundred  twelve." 

iPart  IV  is  that  portion  of  the  Act  which  creates  The  Mas- 
sachusetts Employes  Insurance  Association.  See  Chapter  XXVII, 
ante,  page  500. 


WHEN   LAWS   BECOME    EFFECTIVE  549 

Washington 

NEVADA 

(L.  1911,  c.  183) 
'§  15.  This  act  shall  take  effect  July  1,  1911." 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

"§  13,  This  act  shall  take  effect  January  first,  nine- 
teen hundred  and  twelve. 
"Approved  April  15,  1911." 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§III.  27.  Effective.  This  act  shall  take  effect  on 
the  fourth  day  of  July  next  succeeding  its  passage  and 
approval. 

"Approved  April  4,  1911." 

OHIO 

(L.  1911,  c.  000) 
In  effect  January  1,  1912. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  V,  §  8.  This  act  shall  take  effect  on  the  first 
day  of  October,  nineteen  hundred  and  twelve." 
Approved  by  Governor,  April  29,  1912. 

WASHINGTON 

(L.  1911,  c.  74) 

"Passed  the  House  February  23,  1911. 
"Passed  the  Senate  March  7,  1911. 
"Approved  by  the  Governor  March  14,  1911." 


I 


550    Bradbury's  workmen's  compensation  law 

Wisconsin 


WISCONSIN 
(L.  1911,  c.  50) 

"§2394-32  *  *  *  (2.)  Sections  2394-3  to  2394-32, 
inclusive,  shall  take  effect  and  be  in  force  from  and 
after  the  passage  and  publication  of  this  act,  and  the 
entire  act  shall  be  in  force  from  and  after  Septem- 
ber 1st,  1911. 

"Senate:  Ayes,  22;  Noes,  3;  Paired,  2. 

"Assembly:  Ayes,  69;  Noes,  13;  Paired,  2. 

"Approved  May  3,  1911." 


CHAPTER  XXXI 

FEES  AND  COSTS  ^ 

Page  Page 

California 552     New  Hampshire 553 

Illinois 552     New  Jersey 554 

Kansas 552     Ohio 554 

Massachusetts 552     Rhode  Island 554 

Michigan 553     Washington 554 

Nevada 553     Wisconsin 555 

Under  the  British  Columbia  Act  it  is  held  that  the 
Supreme  Court  has  jurisdiction  to  deal  with  the  ques- 
tion of  costs.  Darnley  v.  Canadian  Pacific  Railway 
Company  (1909),  15  Br.  C.  R.  324;  4  B.  W.  C.  C.  449. 
An  injured  workman  brought  an  action  against  his 
employers  at  common  law  and  under  the  Employers' 
Liability  Act,  asking  in  the  alternative  for  the  assess- 
ment of  compensation  under  the  Workmen's  Com- 
pensation Act.  The  employers  filed  an  admission  of 
liability  under  the  latter  Act,  and  made  an  offer  of 
compensation  at  the  rate  of  SIO  per  week.  The  action 
failed,  and  compensation  was  assessed  at  $9.00  per 
week.  It  was  held  that  the  judge  has  a  discretion  as  to 
the  costs,  and  in  this  case  the  workman  should  have  the 
costs  of  the  assessment  of  compensation  under  the 
Workmen's  Compensation  Act.  Wilson  v.  Kelly  and 
Others  (1909),  (Supreme  Court  of  British  Columbia)  14 
B.  C.437;3B.  W.  C.  C.  599. 

Where  an  employer  succeeded  on  an  application  to 
terminate  an  award  costs  were  allowed  to  the  employer; 
1  For  attorneys'  fees,  see  Chapter  XIX,  ante,  page  346. 
551 


552    Bradbury's  workmen's  compensation  law 

Massachusetts 

it  was  held  that  in  awarding  these  costs  it  was  im- 
material that  the  proceedings  on  behalf  of  the  employer 
were  conducted  by  an  insurance  company  which  had 
issued  a  liability  pohcy  to  the  employer.  Cornish  v. 
Lynch  (1910),  3  B.  W.  C.  C.  343. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§21.  No  fees  shall  be  charged  by  the  clerk  of  any 
court  for  the  performance  of  any  official  service  re- 
quired by  this  act,  except  for  the  docketing  of  judg- 
ments and  for  certified  copies  or  transcripts  thereof. 
In  proceedings  to  review  an  award,  costs  as  between 
the  parties  shall  be  allowed  or  not  in  the  discretion  of 
the  court." 

ILLINOIS 

(L.  1911,  c.  000) 

Presumably  only  usual  to  court  proceedings  as  there 
is  no  special  provision  of  the  act  relating  to  the  subject. 

KA.NSAS 
(L.  1911,  c.  218) 

For  arbitrators'  fees  and  costs  of  arbitration  see  §  26, 
in  Chapter  XXIV,  ante,  page  413. 

For  attorney's  fees  and  hen  see  §§15  and  38,  in 
Chapter  XIX,  ante,  page  346. 

,  MASSACHUSETTS 

i  (L.  1911,  c.  751) 

"Part  III,  §  13.  Fee  of  attorneys  and  physicians 
for  services  under  this  act  shall  be  subject  to  the  ap- 
proval of  the  industrial  accident  board. 


FEES   AND   COSTS  553 


New  Hampshire 


Fees  of  arbitrators  are  paid  by  the  Association  which 
can  deduct  one-third  thereof  from  the  award  found  due 
to  the  employ^.  Part  III,  §  9.  See  Chapter  XXIV, 
ante,  page  421 

"Part  III,  §14.  If  the  committee  of  arbitration, 
industrial  accident  board,  or  any  court  before  whom 
any  proceedings  are  brought  under  this  act  determines 
that  such  proceedings  have  been  brought,  prosecuted, 
or  defended  without  reasonable  ground,  it  shall  assess 
the  whole  cost  of  the  proceedings  upon  the  party  who 
has  so  brought,  prosecuted  or  defended  them." 

MICHIGAN 

(L.  1912,  No.  3) 

See  Part  III,  §  3,  Chapter  XXIV,  ante,  page  423. 

NEVADA 

(L.  1911,  c.  183) 

Compensation  in  Nevada  is  enforced  by  action  in 
court  and  ''costs  of  suit  and  reasonable  attorney's 
fees"  are  allowed  as  in  other  actions.  §  9.  See  Chap- 
ter XXIV,  ante,  page  427.     • 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

In  proceedings  in  Court  to  determine  the  compensa- 
tion the  court  may  award  such  ''taxable  costs  as  jus- 
tice may  require."  §  9.  See  Chapter  XXIV,  ante, 
page  427. 


554    Bradbury's  workmen's  compensation  law 

Washington 

NEW  JERSEY 

(L.  1911,  c.  95) 

For  attorney's  fees  see  Chapter  XIX,  ante,  page  348. 

The  costs  of  proceedings  in  court  when  disputes  arise 
are  fixed  by  the  judge  presiding.  §  II,  paragraph  20. 
See  Chapter  XXIV,  ante,  page  429. 

OHIO 

(L.  1911,  c.  000) 

On  an  appeal  to  a  court  from  an  award  "The  costs 
of  such  proceeding,  including  a  reasonable  attorney's 
fee  to  the  claimant's  attorney  to  be  fixed  by  the  trial 
judge,  shall  be  taxed  against  the  unsuccessful  party." 
§36. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  Ill,  §  6.  *  *  *  The  Superior  Court  may 
award  as  costs  the  actual  expenditures,  or  such  part 
thereof  as  to  the  court  shall  seem  meet,  but  not  in- 
cluding counsel  fees,  and  shall  include  such  costs  in  its 
decree.  The  Superior  Court  may  refuse  to  award 
costs,  and  no  costs  shall  be  awarded  against  an  infant 
or  person  under  disability  or  against  a  guardian  ad 
litem." 

WASHINGTON 
(L.  1911,  c.  74) 

In  case  of  an  appeal  from  an  award  "if  the  decision 
of  the  department  shall  be  reversed  or  modified,  such 
(attorney's)  fee  and  the  fees  of  medical  and  other 
witnesses  and  the  costs  shall  be  payable  out  of  the  ad- 


FEES   AND   COSTS  555 


Wisconsin 


ministration  fund,  if  the  accident  fund  is  affected 
by  the  Utigation,"  §  20.  See  Chapter  XXV,  ante, 
page  464. 

For  fees  of  medical  witnesses  in  appeal  cases  see 
§  25,  in  Chapter  XXV.,  ante,  page  465. 

WISCONSIN 

(L.  1911,  c.  50) 

"§§  2394-22.  No  fees  shall  be  charged  by  the  clerk 
of  any  court  for  the  performance  of  any  official  service 
required  by  this  act,  except  for  the  docketing  of  judg- 
ments and  for  certified  copies  of  transcripts  thereof. 
In  proceedings  to  review  an  award,  costs  as  between 
the  parties  shall  be  allowed  or  not  in  the  discretion  of 
the  court,  but  no  costs  shall  be  taxed  against  Said 
board.  In  any  action  for  the  review  of  an  award,  and 
upon  any  appeal  therein  to  the  supreme  court,  it  shall 
be  the  duty  of  the  attorney  general,  personally,  or  by 
an  assistant,  to  appear  on  behalf  of  the  board,  whether 
any  other  party  defendant  shall  have  appeared  or  be 
represented  in  the  action  or  not." 


CHAPTER  XXXII 

PREFERENCES   OF  CLAIMS  AND  AWARDS  FOR 
COMPENSATION 

Page  Page 

California 556  New  Hampshire 558 

Illinois 556  New  Jersey 558 

Kansas 557  Ohio 558 

Massachusetts 557  Rhode  Island 558 

Michigan 557  Washington 559 

Nevada  . , 557  Wisconsin 559 

CALIFORNIA 

(L.  1911,  c.  399) 

"§  23.  A  claim  for  compensation  for  the  injury  or 
death  of  any  employe,  or  any  award  or  j  udgment  entered 
thereon,  shall  be  entitled  to  a  preference  over  the  other 
debts  of  the  employer  if  and  to  the  same  extent  as  the 
wages  of  such  employ^  shall  be  so  preferred;  but  this 
section  shall  not  impair  the  lien  of  any  judgment 
entered  upon  any  award." 

ILLINOIS 

(L.  1911,  c.  000) 

'"§  11.  Any  person  entitled  to  payment  under  the 
compensation  provisions  of  this  act  from  any  em- 
ployer shall  have  the  same  preferential  claim  therefor 
against  the  property  of  the  employer  as  is  now  allowed 
by  law  for  a  claim  by  such  person  against  such  em- 
ployer for  unpaid  wages  or  for  personal  services,  such 
preference  to  prevail  against  wage  claims  of  all  other 
employes,  not  entitled  to  compensation  for  injuries." 
556 


PREFERENCES   OF   CLAIMS   AND   AWARDS  557 

Nevada 


KANSAS 

(L.  1911,  c.  218) 

There  is  no  provision  in  the  Kansas  Act  on  this 
subject. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

There  is  no  provision  on  this  subject  in  the  Massa- 
chusetts Act  as  awards  for  compensation  are  paid  by 
the  association.  When  the  employer  is  insured  in  a 
habihty  insurance  company  the  company  is  subject  to 
all  the  provisions  of  the  act  or  to  supervision,  etc. 
(Part  V,  §  3)  therefore  the  amount  is  secured.  In 
case  an  employe  sues  under  the  common  law  for  dam- 
ages there  is  no  preference  under  this  act. 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  II,  §  21.  *  *  *  In  case  of  insolvency  every 
liability  for  compensation  under  this  act  shall  con- 
stitute a  first  lien  upon  all  the  property  of  the  employer 
liable  therefor,  paramount  to  all  other  claims  or  liens 
except  for  wages  and  taxes,  and  such  liens  shall  be 
enforced  by  order  of  the  court." 

NEVADA 

(L.  1911,  c.  183) 

"§  12.  A  claim  for  compensation  for  the  injury  or 
death  of  any  employe  or  any  reward  or  judgment  en- 
tered thereon  shall  be  entitled  to  a  preference  over  the 


558    Bradbury's  workmen's  compensation  law 

Rhode  Island 

other  debts  of  the  employer  if  and  to  the  game  extent 
as  the  wages  of  such  employ^  shall  be  so  preferred,  but 
this  section  shall  not  impair  the  lien  of  any  judgment 
entered  upon  any  award." 


NEW  HAMPSHIRE 

(L.  1911,  0.  000) 

"§  10.  Any  person  entitled  to  weekly  payments 
under  this  act  against  any  employer  shall  have  the 
same  preferential  claim  therefor  against  the  assets  of 
the  employer  as  allowed  by  law  for  a  claim  by  such 
person  against  such  employer  for  unpaid  wages  or 
personal  services." 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§III,  22.  Compensation  a  preferential  lien. 
Claims  not  assignable.  The  right  of  compensation 
granted  by  this  act  shall  have  the  same  preference 
against  the  assets  of  the  employer  as  is  now  or  may 
hereafter  be  allowed  by  law  for  a  claim  for  unpaid 
wages  for  labor." 

OHIO 

(L.  1911,  c.  000) 
There  is  no  provision  on  this  subject  in  the  Ohio  Act. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  II,  §  24.  Claims  preferred.  The  claim  for 
compensation  under  this  act,  or  under  any  alternative 
scheme  permitted  by  Article  IV  of  this  act,  and  any 


PREFERENCES   OF   CLAIMS   AND   AWARDS  559 

Wisconsin 

decree  on  any  such  claim,  shall  be  entitled  to  a  pref- 
,  erence  over  the  unsecured  debts  of  the  employer  here-r 
after  contracted  to  the  same  amount  as  the  wages  of 
labor  are  now  preferred  by  the  laws  of  this  state;  but 
nothing  herein  shall  be  construed  as  impairing  any 
lien  which  the  employe  may  have  acquired." 

Article  IV  provides  for  an  alternative  scheme.    See 
Chapter  XXVII. 

WASHINGTON 

(L.  1911,  c.  74) 

There  is  no  provision  in  the  Washington  Act  on  this 
subject. 

WISCONSIN 

(L.  1911,  c.  50) 

"  §  2394-24.  The  whole  claim  for  compensation  for 
the  injury  or  death  of  any  employ^  or  any  award  or 
judgment  thereon,  shall  be  entitled  to  a  preference 
over  the  unsecured  debts  of  the  employer  hereafter 
contracted,  but  this  section  shall  not  impair  the  lien 
of  any  judgment  entered  upon  any  award," 


CHAPTER  XXXIII 

ENFORCEMENT  BY  WORKMEN  OF  CLAIMS  FOR 
COMPENSATION  DIRECTLY  AGAINST  LIABILITY 
INSURANCE   COMPANIES 

Page  Page 

California 561     New  Hampshire 564 

Illinois 562     New  Jersey 564 

Kansas 562     Ohio 564 

Massachusetts 563     Rhode  Island 565 

Michigan 563     Washington 565 

Nevada 564     Wisconsin 565 

Under  the  British  Columbia  Compensation  Act  it 
was  held  that  a  workman  could  not  recover  from  a 
liability  insurance  company  which  had  issued  a  policy 
to  his  employer  who  subsequently  became  insolvent. 
Disourdi  v.  Sullivan  Group  Mining  Co.  and  Another 
(1910),  15  B.  C.  R.  305;  4  B.  W.  C.  C.  462. 

An  injured  workman  was  paid  compensation  by  a 
company  which  became  insolvent  and  was  wound  up. 
The  company  was  insured  against  accidents  under  the 
Act  and  on  the  company  ceasing  to  pay  compensation 
the  workman  brought  proceedings  against  the  insurers. 
The  insurers  alleged  that  there  was  a  dispute  between 
them  and  the  workman's  employers  as  to  whether  the 
latter  had  taken  precautions  against  accidents,  as  re- 
quired by  the  policy,  and  that  until  this  dispute  had 
been  settled  by  arbitration,  in  accordance  with  the 
terms  of  the  policy,  the  employers  could  not  claim 
against  them  and  that  the  workman  had  no  greater 
rights  than  his  employers  had.    The  contention  of  the 

560 


ENFORCING  CLAIMS  AGAINST  INSURANCE  COMPANIES   561 

California 

insurers  was  upheld  by  the  County  Court  judge  and 
this  decision  was  affirmed  by  the  Court  of  Appeal. 
King  v.  Phxenix  Assurance  Co.  (1910),  3  B.  W.  C.  C. 
442. 

There  must  be  an  admission  of  liability  on  the  part 
of  the  insurer,  or  a  finding  by  a  competent  tribunal, 
before  the  provisions  of  §  6  of  the  British  Columbia 
Workmen's  Compensation  Act  of  1902,  as  to  the  pay- 
ment into  court,  can  be  invoked.  Disourdi  v.  Sullivan 
Group  Mining  Company  and  Maryland  Casualty  Co. 
{No.  2)  (1909),  14  B.  C.  R.  256;  2  B.  W.  C.  C.  508. 
In  the  Supreme  Court  of  British  Columbia  it  was  held 
that  any  right  which  the  applicant  for  compensation 
might  have  against  the  employers  under  §  6  of  the 
British  Columbia  Compensation  Act  must  be  decided 
in  an  action  commenced  in  the  ordinary  way  and  that 
the  rules  made  under  §  6  were  ultra  vires.  Disourdi  v. 
Sullivan  Group  Mining  Co.  and  Maryland  Casualty  Co. 
{No.  3),  14  B.  C.  R.  273;  2  B.  W.  C.  C.  514. 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  24.  Nothing  in  this  act  shall  affect  the  organiza- 
tion of  any  mutual  or  other  insurance  company,  or 
any  existing  contract  for  insurance  or  employer's 
liability,  nor  the  right  of  the  employer  to  insure  in 
mutual  or  other  companies,  in  whole  or  in  part,  against 
such  liability,  or  against  the  liability  for  the  compen- 
sation provided  for  by  this  act,  or  to  provide  by  mu- 
tual or  other  insurance,  or  by  arrangement  with  his 
employes,  or  otherwise,  for  the  payment  to  such  em- 
ployes, their  families,  dependents,  or  representatives, 
of  sick,  accident  or  death  benefits,  in  addition  to  the 
36 


562    Bradbury's  workmen's  compensation  law 

Kansas 

compensation  provided  for  by  this  act.  But  liability 
•  for  compensation  under  this  act  shall  not  be  reduced 
or  affected  by  any  insurance,  contributions,  or  other 
benefit  whatsoever  due  to  or  received  by  the  person 
entitled  to  such  compensation,  and  the  person  so  en- 
titled shall,  irrespective  of  any  insurance  or  other 
contract,  have  the  right  to  recover  the  same  directly 
from  the  employer,  and  in  addition  thereto,  the  right 
to  enforce  in  his  own  name,  in  the  manner  provided 
in  this  act,  the  hability  of  any  insurance  company 
which  may,  in  whole  or  in  part,  have  insured  the  lia- 
bility for  such  compensation;  provided,  however,  that 
payment  in  whole  or  in  part  of  such  compensation  by 
either  the  employer  or  the  insurance  company,  shall, 
to  the  extent  thereof,  be  a  bar  to  recovery  against  the 
other  of  the  amount  so  paid,  and  provided  further, 
that  as  between  the  employer  and  the  insurance  com- 
pany, payment  by  either  directly  to  the  employ^,  or 
to  the  person  entitled  to  compensation,  shall  be  sub- 
ject to  the  conditions  of  the  insurance  contract  be- 
tween them." 

ILLINOIS 

(L.  1911,  c.  000) 
No  provision  in  Act  on  this  subject. 

KANSAS 

(L.  1911,  c.  218) 

'  "  §  34.  Insurance.  Where  the  payment  of  compen- 
sation to  the  workman  is  insured,  by  a  policy  or  pol- 
icies, at  the  expense  of  the  employer,  the  insurer  shall 
be  subrogated  to  the  rights  and  duties  under  this  act 
of  the  employer,  so  far  as  appropriate." 
I  "§30.  Staying  proceedings  upon  agreement  or  award. 
At  any  time  after  the  filing  of  an  agreement  or  award 


ENFORCING  CLAIMS  AGAINST  INSURANCE  COMPANIES  563 

Michigan 

and  before  judgment  has  been  granted  thereon,  the 
employer  may  stay  proceedings  thereon  by  fiUng  in 
the  office  of  the  clerk  of  the  district  court  wherein  such 
agreements  or  award  is  filed:  (a)  A  proper  certificate 
of  a  qualified  insurance  company  that  the  amount  of 
the  compensation  to  the  workman  is  insured  by  it: 
(6)  A  proper  bond  undertaking  to  secure  the  payment 
of  the  compensation.  Such  certificate  or  bond  shall 
first  be  approved  by  a  judge  of  the  said  district  court. 

MASSACHUSETTS 

(L.  1911,  0.  751) 

"  Part  V,  §  3.  Any  liability  insurance  company 
authorized  to  do  business  within  this  Commonwealth 
shall  have  the  same  right  as  the  association  to  insure 
the  liability  to  pay  the  compensation  provided  for  by 
Part  II  of  this  act,  and  when  such  liability  company 
issues  a  policy  conditioned  to  pay  such  compensation 
the  holder  of  such  policy  shall  be  regarded  as  a  sub- 
scriber so  far  as  applicable  within  the  meaning  of  this 
act,  and  when  any  such  company  insures  such  pay- 
ment of  compensation  it  shall  be  subject  to  the  pro- 
visions of  Parts  I,  II,  III  and  V  and  of  section  twenty- 
two  of  Part  IV  of  this  act,  and  shall  file  with  the 
Insurance  Department  its  classifications  of  risks  and 
premiums  relating  thereto  and  any  subsequent  pro- 
posed classifications  or  premiums,  none  of  which  shall 
take  effect  until  the  Insurance  Commissioner  has  ap- 
proved the  same  as  adequate  for  the  risks  to  which 
they  respectively  apply."  (As  amended  by  L.  1912, 
c.  571.) 

MICHIGAN 

(L.  1912,  No.  3) 

There  is  no  provision  on  this  subject  in  the  Michigan 
Act. 

36 


564     Bradbury's  workmen's  compensation  law 

Ohio 

NEVADA 

(L.  1911,  c.  183) 

There  is  no  provision  on  this  subject  in  the  Nevada 
law. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

Any  employer  to  take  advantage  of  the  provisions 
of  the  Act,  must  either  satisfy  the  Commissioner  of 
Labor  that  he  is  of  sufficient  financial  ability  to  comply 
with  the  act,  or  must  file  a  bond  "in  such  form  and 
amount  as  the  commissioner  may  prescribe."  This 
bond  may  be  enforced  by  the  Commissioner  of  Labor, 
"for  the  benefit  of  all  persons  to  whom  such  employer 
may  become  liable  under  this  Act  in  the  same  manner 
as  probate  bonds  are  enforced."  §  3.  See  Chapter  II, 
ante,  page  155. 

NEW  JERSEY 

(L.  1911,  c.  95) 

There  is  no  provision  in  the  New  Jersey  Act  permit- 
ting a  workman  to  enforce  his  claim  directly  against  an 
insurance  company  which  insures  his  employer. 

OHIO 

(L.  1911,  c.  000) 

There  is  no  provision  on  this  subject  in  the  Ohio  Act. 
In  fact  in  Ohio  no  insurance  company  can  write  com- 
pensation insurance,  because  no  employer  can  adopt 
the  compensation  feature  of  the  statute  except  by 
paying  premiums  into  the  state  insurance  fund. 


ENFORCING  CLAIMS  AGAINST  INSURANCE  COMPANIES  565 

Wisconsin 

RHODE  ISLAND 

(L.  1912,  c.  571) 
There  is  no  provision  in  the  Act  on  this  subject. 

WASHINGTON 
(L.  1911,  c.  74) 

There  is  no  provision  in  the  Washington  Act  on  this 
subject.  In  fact  the  only  way  in  which  an  employer 
can  adopt  the  compensation  feature  of  the  statute  is 
to  pay  premiums  into  the  state  insurance  fund. 

WISCONSIN 

(L.  1911,  c.  50) 

'  "§2394-26.  Nothing  in  this  act  shall  affect  the 
organization  of  any  mutual  or  other  insurance  com- 
pany, or  any  existing  contract  for  insurance  of  em- 
ployers' liability,  nor  the  right  of  the  employer  to  in- 
sm'e  in  mutual  or  other  companies,  in  whole  or  in  part, 
against  such  liability,  or  against  the  liability  for  the 
compensation  provided  for  by  this  act,  or  to  provide 
by  mutual  or  other  insurance,  or  by  arrangement 
with  his  employes,  or  otherwise,  for  the  payment  to 
such  employes,  their  families,  dependents,  or  repre- 
sentatives, of  sick,  accident,  or  death  benefits  in  addi- 
tion to  the  compensation  provided  for  by  this  act.  But 
liability  for  compensation  under  this  act  shall  not  be 
reduced  or  affected  by  any  insurance,  contribution,  or 
other  benefit  whatsoever,  due  to  or  received  by  the 
person  entitled  to  such  compensation,  and  the  person 
so  entitled  shall,  irrespective  of  any  insurance  or  other 
contract,  have  the  right  to  recover  the  same  directly 
from  the  employer;  and  in  addition  thereto,  the  right 


566    Bradbury's  workmen's  compensation  law 

Wisconsin 

to  enforce  in  his  own  name,  in  the  manner  provided 
in  this  act,  the  Hability  of  any  insurance  company 
which  may,  in  whole  or  in  part,  have  insured  the 
HabiUty  for  such  compensation;  provided,  however, 
that  payment  in  whole  or  in  part  of  such  compensa- 
tion by  either  the  employer  or  the  insurance  company, 
shall,  to  the  extent  thereof,  be  a  bar  to  recovery  against 
the  other  of  the  amount  so  paid,  and  provided  further, 
that  as  between  the  employer  and  the  insurance  com- 
pany, payment  by  either  directly  to  the  employ^, 
or  to  the  person  entitled  to  compensation,  shall  be 
subject  to  the  conditions  of  the  insurance  contract 
between  them." 


CHAPTER  XXXIV 

INSURANCE  CONTRACTS  PRESUMED  TO  BE  SUBJECT 

TO  ACT 

Page  Page 

California 567  New  Hampshire 569 

Illinois 567  New  Jersey 569 

Kansas 568  Ohio 569 

Massachusetts 569  Rhode  Island 570 

Michigan 569  Washington 570 

Nevada 569  Wisconsin.  ... 570 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  25.  Every  contract  for  the  insurance  of  the  com- 
pensation herein  provided  for,  or  against  liabiHty  there- 
for, shall  be  deemed  to  be  made  subject  to  the  provi- 
sions of  this  act,  and  provisions  thereof  inconsistent 
with  this  act  shall  be  void.  No  company  shall  enter 
into  any  such  contract  of  insurance  unless  such  com- 
pany shall  have  been  approved  by  the  commissioner 
of  insurance,  as  provided  by  law." 

ILLINOIS 

(L.  1911,  c.  000) 

"§  15.  This  Act  shall  not  affect  or  disturb  the 
continuance  of  any  existing  insurance,  mutual  aid, 
benefit  or  relief  association  or  department,  whether 
maintained  in  whole  or  in  part  by  the  employer  or 
whether  maintained  by  the  employes,  the  payment  of 
benefits  of  such  association  or  department  being 
guaranteed  by  the  employer  or  by  some  person,  firm 
or  corporation  for  him:  Provided,  the  employer  con- 
567 


568    Bradbury's  workmen's  compensation  law 

Kansas 

tributes  to  such  association  or  department  an  amount 
sufficient  to  insure  the  employes  or  other  beneficiary 
the  full  compensation  herein  provided,  exclusive  of  the 
cost  of  the  maintenance  of  such  association  or  de- 
partment without  any  expense  to  the  employ^.  This 
Act  shall  not  prevent  the  organization  and  main- 
taining under  the  insurance  law  of  this  State  of  any 
benefit  or  insurance  company  for  the  purpose  of  insur- 
ing against  the  compensation  provided  for  in  this  Act, 
the  expense  of  which  is  maintained  by  the  employer. 
This  Act  shall  not  prevent  the  organization  or  main- 
taining under  the  insurance  laws  of  this  State  of  any 
voluntary  mutual  aid,  benefit  or  relief  association 
among  employes  for  the  payment  of  additional  acci- 
dent or  sick  benefits. 

"No  existing  insurance,  mutual  aid,  benefit  or 
relief  association  or  department  shall,  by  reason  of 
anything  herein  contained,  be  authorized  to  discon- 
tinue its  operation  without  first  discharging  its  obliga- 
tions to  any  and  all  persons  carrying  insurance  in  the 
same  or  entitled  to  relief  or  benefits  therein. 

"Any  contract  of  employment,  reUef  benefit,  or 
.  insurance  or  other  device  whereby  the  employ^  is 
required  to  pay  any  premium  or  premiums  for  insur- 
ance against  the  compensation  provided  for  in  this 
Act  shall  be  null  and  void,  and  any  employer  with- 
holding from  the  wages  of  any  employ^  any  amount 
for  the  purpose  of  paying  any  such  premium  shall  be 
guilty  of  a  misdemeanor  and  punishable  by  a  fine  of 
not  less  than  ten  dollars  nor  more  than  twenty-five 
dollars  in  each  offense  in  the  discretion  of  the  court." 

KANSAS 
(L.  1911,  c.  218) 
See  §  34,  in  Chapter  XXXIII,  ante,  page  562. 


INSURANCE   CONTRACTS   SUBJECT   TO   ACT  569 

Ohio 

MASSACHUSETTS 
(L.  1911,  c.  751) 
See  Part  V,  §  3,  in  Chapter  XXXIII,  ante,  page  563. 

MICHIGAN 
(L.  1912,  No.  3) 

Every  contract  of  insurance  against  liability  for 
compensation  is  deemed  made  subject  to  the  provisions 
of  the  Act.  See  Part  IV,  §  3,  Chapter  XXVII,  ante, 
page  507. 

NEVADA 

(L.  1911,  c.  183) 

There  is  no  provision  on  this  subject  in  the  Nevada 
law. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

There  is  no  provision  on  this  subject  in  the  New 
Hampshire  Act. 

NEW  JERSEY 

(L.  1911,  c.  95) 

There  is  no  provision  in  the  New  Jersey  Act  on  this 
subject. 

OHIO 

(L.  1911,  c.  000) 

There  is  no  provision  on  this  subject  in  the  Ohio 
Act.  In  fact  no  insurance  company  can  insure  an 
employer   against   liability   under   the   compensation 


570    Bradbury's  workmen's  compensation  law 

Wisconsin 

feature  of  the  statute,  as  the  only  method  in  which 
an  employer  can  adopt  this  feature  is  by  contributing 
to  the  state  insurance  fund. 


RHODE  ISLAND 

(L.  1912,  c.  571) 
There  is  no  provision  in  the  Act  on  this  subject. 

WASHINGTON 
(L.  1911,  c.  74) 

There  is  no  provision  in  the  Washington  Act  on  this 
subject.  In  fact  the  only  method  in  which  an  employer 
can  adopt  the  compensation  feature  of  the  statute 
is  by  paying  premiums  into  the  state  insurance  fund. 

WISCONSIN 

(L.  1911,  c.  50) 

"§  2394-27.  Every  contract  for  the  insurance  of 
the  compensation  herein  provided  for,  or  against 
liability  therefor,  shall  be  deemed  to  be  made  subject 
to  the  provisions  of  this  act,  and  provisions  thereof 
inconsistent  with  this  act  shall  be  void.  No  company 
shall  enter  into  any  such  contract  of  insurance  unless 
such  company  shall  have  been  approved  by  the  com- 
missioner of  insurance,  as  provided  by  law.  For  the 
purposes  of  this  act,  each  employ^  shall  constitute  a 
separate  risk  within  the  meaning  of  section  1898d  of 
the  statutes." 


CHAPTER  XXXV 

COMPROMISING  CLAIMS  AND  AWARDS » 

Page  Page 

California 574     New  Hampshire 676 

Illinois 574     New  Jersey 577 

Kansas 575     Ohio 577 

Massachusetts 575     Rhode  Island 577 

Michigan 575     Washington 577 

Nevada 576     Wisconsin 578 

In  general. 

A  workman  employed  by  contractors  was  knocked 
down  and  injured  by  the  defendants'  tramcar.  He 
received  several  weekly  pajnnents  from  his  employers 
and  gave  them  receipts  therefor.  Subsequently  he  re- 
paid to  the  employers  the  amount  he  had  received  from 
them,  and  sued  the  defendants  for  damages.  At  the 
trial  the  workman  stated  that  he  did  not  understand 
the  nature  and  terms  of  the  receipts  he  had  signed.  The 
County  Court  judge  dismissed  the  case,  holding,  as  a 
matter  of  law,  that  he  had  recovered  compensation 
within  the  meaning  of  §  6  of  the  Workmen's  Compensa- 
tion Act,  and  that  his  action  was  therefore  barred.  The 
Court  of  Appeal  held  that  it  was  a  question  for  the  jury 
whether  the  plaintiff  understood  the  natme  and  effect 
of  the  receipts  he  had  signed.  Huckle  v.  The  London 
County  Council  (1910),  4  B.  W.  C.  C.  113. 

An  illiterate  and  ignorant  workman  gave  a  cimiula- 

'  For  commutation  of  awards  and  agreed  compensation  see  Chap- 
ter XI,  ante,  page  294. 

571 


572    Bradbury's  workmen's  compensation  law 

In  general 

tive  receipt  for  all  payments  of  compensation  received 
by  him.  This  sum  included  one  week  in  advance,  but 
no  other  additional  payment.  It  was  found,  as  a  fact, 
that  the  workman  was  not  recovered  at  this  date,  nor 
at  the  date  of  the  hearing  of  the  arbitration.  The 
employer  applied  to  record  a  memorandum  of  agree- 
ment of  final  discharge,  and  the  workman  at  the  same 
time  applied  to  record  one  to  pay  him  compensation. 
It  was  held  that  the  "final  discharge"  was  not  a 
genuine  agreement,  and  should  not  be  recorded,  but 
that  the  workman's  memorandum  should  be  recorded. 
Macandrew  v.  Gilhooley  (1911),  48  Scotch  L.  R.  511; 
4  B.  W.  C.  C.  370. 

A  judge  refused  to  record  a  memorandum  of  agree- 
ment for  a  lump  sum  settlement  on  the  ground  of  in- 
adequacy. The  workman  then  applied  for  compensa- 
tion, and  the  judge,  finding  that  his  incapacity  was  no 
longer  due  to  the  accident  and  that  the  amount  in  fact 
paid  under  the  settlement  was  enough  to  cover  all 
compensation  due  for  the  short  period  during  which 
the  incapacity  had  been  due  to  the  accident,  decided 
in  favor  of  the  employers.  The  Court  of  Appeal  held 
that  the  judge  was  entitled  to  decide  the  application 
for  compensation  freely  on  the  evidence  and  was  not 
bound  by  his  previous  decision  to  award  compensation. 
Beech  v.  Bradford  Corporation  (1911),  4  B.  W.  C.  C.  236. 

A  workman  entitled  to  compensation  under  the 
Workmen's  Compensation  Act  of  1906  signed  a  dis- 
charge which  purported  to  be  in  full  satisfaction  of  all 
claims,  past  and  future,  in  the  belief  that  he  was  merely 
signing  a  receipt  for  compensation  past  due.  The 
employers'  cashier  took  the  discharge  in  the  belief  that 
the  workman  had  fully  recovered,  whereas  he  was  st 


COMPROMISING   CLAIMS   AND   AWARDS  573 

In  general 

totally  incapacitated.  Compensation  was  awarded,  it 
being  held  that  the  workman  was  not  barred  from  re- 
covering compensation  by  the  discharge.  Ellis  v.  The 
Lochgelly  Iron  and  Coal  Co.  (1909),  46  Scotch  L.  R. 
960;  2  B.  W.  C.  C.  136. 

Where  a  claimant  signed  a  release  expressing  a  con- 
sideration of  £35  and  it  appeared  only  the  sum  of 
£17,  10s.  was  paid,  and  the  balance  was  paid  as  wages, 
it  was  held  that  there  was  accord  but  no  satisfaction, 
and  that  the  receipt  did  not  contain  a  genuine  agree- 
ment under  the  Act.  Hawkes  v.  Richard  Coles  and  Sons 
(1910),  3  B.  W.  C.  C.  163. 

A  compensation  agreement  between  the  workman 
and  his  employers  stated  that  the  workman  should  re- 
ceive a  lump  sum  of  money  and  be  given  regular  em- 
ployment, as  foreman  in  the  works,  at  specified  wages. 
The  employers  paid  the  sum  of  money  and  kept  the 
workman  in  their  employment  on  the  terms  arranged 
for  nearly  three  years,  when  they  dismissed  him  owing 
to  a  dispute.  The  workman  thereupon  brought  an 
action  against  them  for  damages  for  breach  of  con- 
tract, and  it  was  held  that  the  action  could  not  be  main- 
tained as  there  was  no  breach  of  contract,  the  employers 
having  given  the  workman  regular  employment  for  a 
considerable  period.  Lawrie  v.  James  Brown  &  Co. 
(1908),  45  Scotch  L.  R.  477;  1  B.  W.  C.  C.  137. 

A  seaman  sustained  serious  injuries.  He  was  con- 
veyed to  a  hospital  while  unconscious  and  remained 
there  after  his  discharge  from  the  ship  for  fifteen  weeks. 
The  shipowners  made  payments  for  his  maintenance 
during  that  period  equal  to  the  full  weekly  compensa- 
tion for  which  they  were  liable.  They  were  not  legally 
liable  to  make  these  payments  under  the  Merchant 


574    Bradbury's  workmen's  compensation  law 

California 

Shipping  Act.  It  was  held  that  such  payments  were  a 
benefit  which  the  workman  received  from  the  employers 
during  the  period  of  his  incapacity,  and  that  they  must 
be  taken  into  account  in  fixing  the  amount  of  compen- 
sation. Kempson  v.  Owners  of  Schooner  "Moss  Rose'' 
(1910),  4  B.  W.  C.  C.  101. 

On  an  application  for  compensation  account  must 
be  taken  of  a  lump  sum  paid  by  the  employer  in  full 
settlement.  Horsman  v.  Glasgow  Navigation  Co.  (1909), 
3  B.  W.  C.  C.  27. 

CALIFORNIA 

(L.  1911,  c.  399) 

"§  28.  Nothing  in  this  act  contained  shall  be  con- 
strued as  impairing  the  right  of  parties  interested, 
after  the  injury  or  death  of  an  employe,  to  compromise 
and  settle  upon  such  terms  as  they  may  agree  upon, 
any  liability  which  may  be  claimed  to  exist  under 
this  act  on  account  of  such  injury  or  death,  nor  as 
conferring  upon  the  dependents  of  any  injured  em- 
ploy6  any  interest  which  he  may  not  divert  by  such 
settlement  or  for  which  he  or  his  estate  shall,  in  the 
event  of  such  settlement  by  him,  be  accountable  to 
such  dependents  or  any  of  them." 

ILLINOIS 

(L.  1911,  c.  000) 

"§  12.  Any  contract  or  agreement  made  by  any 
employer  or  his  agent  or  attorney  with  any  employ^ 
or  any  other  beneficiary  of  any  claim  under  the  pro- 
visions of  this  Act  within  seven  days  after  the  injury 
shall  be  presumed  to  be  fraudulent. 

"§  13.  No  employe  or  beneficiary  shall  have  power 


COMPROMISING   CLAIMS   AND   AWARDS  575 

Michigan 

to  waive  any  of  the  provisions  of  this  Act  in  regard 
to  the  amount  of  compensation  which  may  be  payable 
to  such  employe  or  beneficiary  hereunder." 

KANSAS 

(L.  1911,  0.  218) 

"§23.  Agreements.  Compensation  due  under  this 
act  may  be  settled  by  agreement.  Every  such  agree- 
ment, other  than  a  release,  shall  be  in  the  form  herein- 
after provided." 

But  see  §§  29  and  32,  in  Chapter  XXVI,  ante,  page 
487,  for  right  to  cancel  or  modify  agreements  or  awards. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

The  agreement  as  to  compensation  must  be  filed 
with  and  approved  by  the  Industrial  Accident  Board. 
Part  III,  §  4.    See  Chapter  XXIV,  ante,  page  419. 

"  Part  II,  §  22.  Whenever  any  weekly  payment  has 
been  continued  for  not  less  than  six  months,  the  lia- 
bility therefor  may  in  unusual  cases  be  redeemed  by 
the  payment  of  a  lump  sum  by  agreement  of  the  par- 
ties, subject  to  the  approval  of  the  Industrial  Acci- 
dent Board." 

MICmOAN 

(L.  1912,  No.  3) 

"PART  VI 

"Miscellaneous  Provisions 

"§  1.  If  the  employe,  or  his  dependents,  in  case  of 
his  death,  of  any  employer  subject  to  the  provisions 


576    Bradbury's  workmen's  compensation  law 

New  Hampshire 

of  this  act  files  any  claim  with,  or  accepts  any  pay- 
ment from  such  employer,  or  any  insurance  company 
carrying  such  risks,  or  from  the  commissioner  of 
insurance  on  account  of  personal  injury,  or  makes  any 
agreement,  or  submits  any  question  to  arbitration 
under  this  act,  such  action  shall  constitute  a  release 
to  such  employer  of  all  claims  or  demands  at  law,  if 
any,  arising  from  such  injury." 

NEVADA 

(L.  1911,  c.  183) 

"§  14,  Nothing  in  this  act  contained  shall  be  con- 
strued as  impairing  the  right  of  parties  interested 
after  the  injury  or  death  of  an  employ^  to  compromise 
or  settle  upon  such  terms  as  they  may  agree  upon  any 
liability  which  may  be  claimed  to  exist  under  this 
act  on  account  of  such  injury  or  death,  nor  as  con- 
ferring upon  the  dependents  of  any  injured  employ 6 
any  interest  which  he  may  not  divert  by  such  settle- 
ment or  for  which  he  or  his  estate  shall  in  the  event 
of  such  settlement  by  him  be  accountable  to  such  de- 
pendents or  any  of  them." 

NEW  HAMPSHIRE 
(L.  1911,  c.  000) 

There  is  no  prohibition  against  compromising  claims 
in  the  New  Hampshire  Act.  Nor  is  there  any  power 
of  revision  vested  in  any  person  when  an  employer 
and  his  employ^  agree  upon  a  basis  of  compensation. 
In  fact  the  statute  plainly  contemplates  such  agree- 
ments and  provides  a  remedy  only  when  an  agree- 
ment is  not  reached.  See  §  9,  in  Chapter  XXIV,  antCy 
page  427. 


COMPROMISING   CLAIMS   AND   AWARDS  577 

Washington 

NEW  JERSEY 

(L.  1911,  c.  95) 

No  compensation  payment  can  be  commuted  by- 
payment  of  a  lump  sum  unless  by  order  of  a  judge  of 
the  Court  of  Common  Pleas  ''in  the  interest  of  justice." 
§  2,  paragraph  21.    See  Chapter  XI,  ante,  page  299. 

There  has  been  much  discussion  as  to  whether  a 
general  release  taken  by  an  employer  in  consideration 
of  the  payment  of  a  lump  sum  to  an  injured  workman 
is  binding  under  the  subdivision  of  the  Act  referred  to 
above.  Doubtless  such  releases  are  not  void,  but  they 
may  be  voidable  if  it  appears  that  an  injustice  has 
been  done  to  the  employe. 

OHIO 

(L.  1911,  c.  000) 

There  is  no  provision  on  this  subject  in  the  Ohio 
Act. 

RHODE  ISLAND 

(L.  1912,  c.  571) 

The  parties  may  agree  upon  the  compensation  to  be 
paid.    Art.  Ill,  §  1.    See  Chapter  XXIV,  ante,  page  438. 

WASHINGTON 

(L.  1911,  c.  74) 

There  is  no  provision  in  the  Washington  Act  on  this 
subject. 


37 


578    Bradbury's  workmen's  compensation  law 

Wisconsin 

WISCONSIN 

(L.  1911,  c.  50) 

The  employer  may  compromise  claims  under  the 
Act,  but  every  compromise  is  subject  to  review  by 
the  industrial  accident  board  and  may  be  set  aside, 
modified  or  confirmed  within  one  year  from  the  time 
of  such  compromise.  See  §  2394-15,  Chapter  XXIV, 
ante,  page  448. 


CHAPTER  XXXVI 

EXPENSES   OF  ADMINISTERING   LAW,   OTHER   THAN 
PAYMENTS  OF  AWARDS  FOR  COMPENSATION 

Page  Page 

California 579  New  Hampshire 581 

Illinois 579  New  Jersey 581 

Kansas 579  Ohio 581 

Massachusetts 580  Rhode  Island 582 

Michigan 580  Washington 583 

Nevada 581  Wisconsin 584 

CALIFORNIA 

(L.  1911,  c.  399) 

"§  29.  The  sum  of  fifty  thousand  dollars  is  hereby 
appropriated  out  of  any  moneys  in  the  state  treasury, 
not  otherwise  appropriated,  to  be  used  by  the  indus- 
trial accident  board  in  carrying  out  the  purposes  of 
this  act,  and  the  controller  is  hereby  directed  to  draw 
his  warrant  on  the  general  fund  from  time  to  time  in 
favor  of  said  industrial  accident  board  for  the  amounts 
expended  under  its  direction,  and  the  treasurer  is 
hereby  authorized  and  directed  to  pay  the  same." 

ILLINOIS 

(L.  1911,  c.  000) 

There  is  no  special  provision  in  the  Act  on  this  sub- 
ject. 

KANSAS 
(L.  1911,  c.  218) 

The  arbitrator's  fees  are  paid  by  the  parties.    §  26. 
See  Chapter  XXIV,  ante,  page  413. 

579 


580    Bradbury's  workmen's  compensation  law 

Michigan 

The  regular  courts,  where  controversies  are  de- 
termined in  lieu  of  arbitration,  are,  of  course,  main- 
tained at  the  expense  of  the  State. 

MASSACHUSETTS 

(L.  1911,  c.  751) 

All  expense  of  administering  the  law  is  paid  by  the 
State  by  direct  appropriations.  See  Chapter  XXIV, 
ante,  page  418.  Except,  of  course,  the  expenses  of  the 
Massachusetts  Employes  Insurance  Association  which 
are  paid  by  that  association  from  its  own  funds.  Part 
IV,  §§  14,  15  and  16.  The  first  board  of  directors  of 
the  association  may  spend  $15,000  appropriated  by  the 
State.    Part  IV,  §  24. 

MICHIGAN 

(L.  1912,  No.  3) 

The  expenses  of  administering  the  law  are  a  state 
charge.    See  Part  IV,  Chapter  XXVII,  ante,  page  505. 

"Part  VI,  §  7.  To  carry  out  the  provisions  of  this 
act  there  is  hereby  appropriated  for  the  expenses  of 
the  industrial  accident  board  for  the  fiscal  year  ending 
June  thirtieth,  nineteen  hundred  thirteen,  and  an- 
nually thereafter,  the  sum  of  twenty-five  thousand 
dollars.  The  auditor  general  shall  add  to  and  in- 
corporate into  the  state  tax  the  sum  of  twenty-five 
thousand  dollars  annually,  which  said  sum  shall  be 
included  in  the  state  taxes  apportioned  by  the  auditor 
general  on  all  taxable  property  of  the  state,  to  be 
levied,  assessed  and  collected  as  other  state  taxes,  and 
when  so  assessed  and  collected  to  be  paid  into  the 
general  fund  to  reimburse  said  fund  for  the  appropria- 
tion made  by  this  act." 


EXPENSES   OF   ADMINISTERING   LAW  581 

Ohio 

NEVADA 

(L.  1911,  c.  183) 

The  Nevada  law  is  enforced  in  the  regular  courts 
and  therefore  there  is  no  special  provision  for  admin- 
istration expenses. 

NEW  HAMPSHIRE 

(L.  1911,  c.  000) 

The  Commissioner  of  Labor,  who  has  general  super- 
vision of  the  administration  of  the  Act,  is  a  state  officer 
and  is  paid  as  such.  Controversies  are  settled  in  the 
regular  courts  so  there  are  no  special  expenses  of  ad- 
ministration other  than  the  increase  caused  by  the 
excess  of  work  due  to  the  operation  of  the  Act. 

NEW  JERSEY 
(L.  1911,  c.  95) 

See  Chapter  241  of  the  Laws  of  1911,  reprinted  in 
Chapter  XXIV  of  this  work,  ante,  page  431,  creating 
an  employers'  liability  commission  to  gather  data 
and  study  the  operation  of  the  Act,  at  the  expense  of 
the  State. 

As  disputes  relating  to  compensation  are  determined 
by  the  Court  of  Common  Pleas  there  is  no  special 
provision  for  paying  the  expenses  of  administering 
the  Act.     See  Chapter  XXIV,  ante,  page  428. 

OHIO 

(L.  1911,  c.  000) 

The  State  Insurance  Law  of  Ohio  is  administered 
at  the  expense  of  the  State.     No  part  of  the  sum  col- 


582    Bradbury's  workmen's  compensation  law 

Rhode  Island 

lected  from  employers  to  create  an  insurance  fund  is 
used  for  the  purposes  of  administration.  See  §§  1-15, 
reprinted  in  Chapter  XXIV,  ante,  page  432. 

"§37.  Expenditures  of  board.  The  Board  may 
make  necessary  expenditures  to  obtain  statistical  and 
other  information  to  establish  the  classes  provided  for 
in  section  17.  The  salaries  and  compensation  of  the 
secretary,  and  all  actuaries,  accountants,  inspectors, 
examiners,  experts,  clerks  and  other  assistants,  and 
all  other  expenses  of  the  board  herein  authorized,  in- 
cluding the  premium  to  be  paid  by  the  state  treasurer 
for  the  bond  to  be  furnished  by  him,  shall  be  paid  out 
of  the  state  treasury  upon  vouchers,  signed  by  two 
of  the  members  of  such  Board,  presented  to  the  auditor 
of  state,  who  shall  issue  his  warrant  therefor  as  in 
other  cases. " 

"§40.  Expenses — preliminary.  The  expense  of 
such  Board  in  carrying  out  the  provisions  of  this  act 
shall  be  paid  until  January  1,  1912,  out  of  the  general 
revenue  of  the  State  not  otherwise  appropriated.  Such 
expense  shall  not  exceed  twenty-five  thousand  dollars 
in  addition  to  the  salaries  of  members  of  such  board. 

"§  41.  Expenses  from  fund.  The  expenses  of  such 
Board  in  carrying  out  the  provisions  of  this  act  shall 
be  paid  from  January  1st,  1912,  to  January  1st,  1913, 
out  of  the  general  revenue  fund  of  the  State  not  other- 
wise appropriated.  Such  expense  shall  not  exceed 
one  hundred  thousand  dollars  in  addition  to  the  salary 
of  the  members." 

RHODE  ISLAND 

(L.  1912,  c.  000) 
The  law  is  administered  by  the  courts. 


EXPENSES   OF   ADMINISTERING   LAW  583 

Wisconsin 
WASHINGTON 
(L.  1911,  c.  74) 

"§29.  Appropriations. 

"There  is  hereby  appropriated  out  of  the  state 
treasury  the  sum  of  one  hundred  and  fifty  thousand 
dollars,  or  so  much  thereof  as  may  be  necessary,  to  be 
knowTi  as  the  administration  fund,  out  of  which  the 
salaries,  traveling  and  office  expenses  of  the  depart- 
ment shall  be  paid,  and  also  all  other  expenses  of  the 
administration  of  the  accident  fund;  and  there  is 
hereby  appropriated  out  of  the  accident  fund  for  the 
purpose  to  which  said  fund  is  applicable  the  sum  of 
$1,500,000.00,  or  so  much  thereof  as  shall  be  necessary 
for  the  purposes  of  this  act." 

WISCONSIN 

(L.  1911,  c.  50) 

The  salaries  and  other  expenses  of  the  Industrial 
Accident  Board  are  paid  out  of  the  general  funds  of 
the  State.  See  §  2394-14,  Chapter  XXIV,  ante,  page 
447 

"§  2394r-30.  A  sum  sufficient  to  carry  out  the  pro- 
visions of  this  act  is  hereby  appropriated  out  of  any 
money  in  the  treasury  not  otherwise  appropriated. 


CHAPTER  XXXVII 

REPEALING  ACTS 

Page  Page 

California 584     New  Hampshire 586 

Illinois 584     New  Jersey 586 

Kansas 585     Ohio 588 

Massachusetts 585     Rhode  Island 589 

Michigan 586     Washington 589 

Nevada 586     Wisconsin 591 

CALIFORNIA 

(L.  1911,  c.  399) 

"  §  30.  All  acts  or  parts  of  acts  inconsistent  with 
this  act  are  hereby  repealed." 

For  provision  as  to  election  of  remedies  see  Chap- 
ter I,  ante,  page  9. 

ILLINOIS 

(L.  1911,  c.  000) 

"  §  233^.  The  right  of  action  for  damages  caused 
by  any  such  injury,  at  common  law  or  any  other 
statute  in  force  prior  to  the  taking  of  effect  hereof 
shall  not  be  affected  by  this  Act  and  every  existing 
right  of  action  for  negligence  or  to  recover  damages 
for  injury  resulting  in  death,  is  continued  and  nothing 
in  this  Act  shall  be  construed  as  limiting  the  right  of 
such  action  so  construed  before  the  taking  effect  of 
this  Act. 

"§24.  The  invahdity  of  any  portion  of  this  Act 
584 


REPEALING   ACTS  585 


Massachusetts 


shall  in  no  way  affect  the  validity  of  any  other  por- 
tion thereof  which  can  be  given  effect  without  such 
invaUd  part." 

KANSAS 

(L.  1911,  c.  218) 

"§48.  Nothing  in  this  act  shall  be  construed  to 
amend  or  repeal  section  6999  of  the  General  Statutes 
of  Kansas  of  1909,  or  House  bill  No.  240  of  the  Session 
of  1911,  the  same  being  'An  act  relating  to  the  lia- 
bility of  common  carriers  by  railroads  to  their  em- 
ployes in  certain  cases,  and  repealing  all  acts  and 
parts  of  acts  so  far  as  the  same  are  in  conflict  here- 
with.' 


MASSACHUSETTS 
(L.  1911,  c.  751) 
"Part  V 
"Miscellaneous  Provisions 

"§  1.  If  an  employ^  of  a  subscriber  files  any  claim 
with  or  accepts  any  payment  from  the  association  on 
account  of  personal  injury,  or  makes  any  agreement, 
or  submits  any  question  to  arbitration,  under  this  act, 
such  action  shall  constitute  a  release  to  the  subscriber 
of  all  claims  or  demands  at  law,  if  any,  arising  from 
the  injury." 

''§4.  Sections  one  hundred  and  thirty-six  to  one 
hundred  and  thirty-nine,  inclusive,  of  chapter  five 
hundred  and  fourteen  of  the  acts  of  the  year  nineteen 
hundred  and  nine  are  hereby  repealed."  (As  amended 
by  L.  1912,  c.  571.) 


586    Bradbury's  workmen's  compensation  law 

New  Jersey 

MICHIGAN 

(L.  1912,  No.  3) 

"Part  VI,  §  3.  This  act  shall  not  affect  any  cause 
of  action  existing  or  pending  before  it  went  into 
effect." 

"§  5.  All  acts  or  parts  of  acts  inconsistent  with  this 
act  are  to  be  deemed  replaced  by  this  act,  and  to  that 
end  are  hereby  repealed. 

"§  6.  The  legislature  intends  that  part  five  of  this 
act  shall  be  deemed  separate  from  the  other  parts 
thereof,  so  that  if  said  part  five  should  fail  or  be  ad- 
judged invalid  or  uncoristitutional  it  shall  in  no  way 
affect  any  other  part  of  this  act," 

Approved  March  20,  1912. 

NEVADA 

There  is  no  special  repealing  clause  in  the  Nevada 
Law. 

NEW  HAMPSHIRE 

See  §  4,  in  Chapter  I,  ante,  page  27. 

NEW  JERSEY 

(L.  1911,  c.  95) 

"§  III,  24.  As  to  constitutionality  of  any  provision. 
Relation  of  sections  of  act.  In  case  for  any  reason  any 
paragraph  or  any  provision  of  this  act  shall  be  ques- 
tioned in  any  court  and  shall  be  held  to  be  unconstitu- 
tional or  invalid,  the  same  shall  not  be  held  to  affect 
any  other  paragraph  or  provision  of  this  act,  except 


REPEALING   ACTS  587 


New  Jersey 


that  sections  I  and  II  are  hereby  declared  to  be  in- 
separable, and  if  either  section  be  declared  void  or 
inoperative  in  an  essential  part,  so  that  the  whole  of 
such  section  must  fall,  the  other  section  shall  fall 
with  it  and  not  stand  alone.  Section  I  of  this  act 
shall  not  apply  in  cases  where  section  II  becomes 
operative  in  accordance  with  the  provisions  thereof, 
but  shall  apply  in  all  other  cases,  and  in  such  cases 
shall  be  in  extension  of  the  common  law." 

"25.  Rights  of  action  in  previous  cases.  Every 
right  of  action  for  negligence,  or  to  recover  damages 
for  injuries  resulting  in  death,  existing  before  this  act 
shall  take  effect,  is  continued,  and  nothing  in  this  act 
contained  shall  be  construed  as  affecting  any  such 
right  of  action  nor  shall  the  failure  to  give  the  notice 
provided  for  in  Section  II,  paragraph  fifteen  of  this 
act,  be  a  bar  to  the  maintenance  of  a  suit  upon  any 
right  or  action  existing  before  this  act  shall  take 
effect." 

The  foregoing  paragraph  (25)  seems  hardly  consistent 
with  the  provisions  of  Section  II,  paragraph  eight, 
which  will  be  found  in  Chapter  II,  ante,  page  157.  The 
two  provisions  have  been  the  subject  of  much  discus- 
sion. While  the  point  is  as  yet  undetermined  by  final 
authority,  the  better  opinion  seems  to  be  that  if  the 
employer  has  brought  himself  within  the  provisions  of 
the  Compensation  Act  either  by  presumption  or  af- 
firmative action  under  an  agreement,  that  then  the 
employe's  common-law  right  of  action  is  eliminated. 
For  further  discussion  of  this  point  see  Chapter  I,  ante, 
page  29. 

"§3-26.  Repealer.  All  acts  or  parts  of  acts  in- 
consistent with  the  provisions  of  this  act  are  hereby 
repealed." 


588    Bradbury's  workmen's  compensation  law 

Ohio 


OHIO 

(L.  1911,  c.  000) 

Section  21-1  abolishes  the  common-law  defenses  of 
the  employer  who  does  not  elect  to  accept  the  state 
insurance  plan  and  then  the  statute  continues  as  follows : 

"§21-2.  Willful  act  of  employer.  But  where  a 
personal  injury  is  suffered  by  an  employe,  or  when 
death  results  to  an  employe  from  personal  injuries 
while  in  the  employ  of  an  employer  in  the  course  of 
employment,  and  such  employer  has  paid  into  the 
state  insurance  fund  the  premium  provided  for  in  this 
act,  and  in  case  such  injury  has  arisen  from  the 
willful  act  of  such  employer  or  any  of  such  employer's 
officers  or  agents  or  from  the  failure  of  such  employer, 
or  any  of  such  employer's  officers  or  agents,  to  comply 
with  any  municipal  ordinance  or  lawful  order  of  any 
duly  authorized  officer,  or  any  statute  for  the  protec- 
tion of  the  life,  or  safety  of  employes,  then  in  such 
event,  nothing  in  this  act  contained  shall  affect  the 
civil  liability  of  such  employer,  but  such  injured  em- 
ploy6,  or  his  legal  representative,  in  case  death  results 
from  the  injury,  may,  at  his  option,  either  claim  com- 
pensation under  this  act  or  institute  proceedings  in 
the  courts  for  his  damage  on  account  of  such  injury, 
and  such  employer  shall  not  be  liable  for  any  injury 
to  any  employ^,  or  to  his  legal  representative,  in 
case  death  results  except  as  provided  in  this  act. 

Every  employe,  or  legal  representative,  in  case 
death  results,  who  makes  application  for  an  award 
from  the  state  liability  board  of  awards,  waives  his 
right  to  exercise  his  option  to  institute  proceedings 
in  any  court.  Every  employ^  or  his  legal  representa- 
tive, in  case  death  results,  who  exercises  his  option  to 


REPEALING   ACTS  589 


Washington 


institute  proceedings  in  court  as  provided  in  §  21-2, 
waives  his  right  to  any  award;  except  as  provided  in 
Section  36  of  this  act. 

See  Chapter  I,  ante,  page  32,  for  comments  on  the 
above  section. 

RHODE  ISLAND 

(L.  1912,  c.  000) 

"Art.  V,  §2.  Nothing  in  this  act  shall  affect  the 
liability  of  the  employer  to  a  fine  or  penalty  under 
any  other  statute. 

"§  3.  The  provisions  of  this  act  shall  not  apply  to 
injuries  sustained,  or  accidents  which  occur,  prior  to 
the  taking  effect  hereof. 

"  §  4.  If  any  section  of  this  act  shall  be  declared  un- 
constitutional or  invalid,  such  unconstitutionality  or 
invalidity  shall  in  no  way  affect  the  validity  of  any 
other  portion  thereof  which  can  be  given  reasonable 
effect  without  the  part  so  declared  unconstitutional 
or  invalid. 

"§  5.  In  all  cases  where  an  employer  and  employe 
shall  have  elected  to  become  subject  to  the  provisions 
of  this  act,  the  provisions  of  section  14  of  Chapter  283 
of  the  General  Laws  shall  not  apply  while  this  act  is 
in  effect. 

"§6.  All  acts  and  parts  of  acts  inconsistent  here- 
with are  hereby  repealed. 

"  §  7.  This  act  may  be  cited  as  '  Workmen's  Com- 
pensation Act.'  " 

WASHINGTON 

(L.  1911,  c.  74) 

"  §  30.  Safeguard  regulations  preserved.  Nothing  in 
this  act  contained  shall  repeal  any  existing  law  pro- 


590    Bradbury's  workmen's  compensation  law 

Washington 

viding  for  the  installation  or  maintenance  of  any  de- 
vice, means  or  method  for  the  prevention  of  accidents 
in  extra  hazardous  work  or  for  a  penalty  or  punish- 
ment for  failure  to  install  or  maintain  any  such  pro- 
tective device,  means  or  method,  but  sections  8,  9,  and 
10  of  the  act  approved  March  6,  1905,  entitled:  "An 
act  providing  for  the  protection  and  health  of  em- 
ployes in  factories,  mills  or  workshops,  where  ma- 
chinery is  used,  and  providing  for  suits  to  recover 
damages  sustained  by  the  violation  thereof,  and  pre- 
scribing a  punishment  for  the  violation  thereof  and 
repealing  an  act  entitled  'An  act  providing  for  the 
protection  of  employes  in  factories,  mills,  or  work- 
shops where  machinery  is  used,  and  providing  for 
the  punishment  of  the  violation  thereof,  approved 
March  6,  1903, '  and  repealing  all  other  acts  or  parts 
of  acts  in  conflict  herewith,"  are  hereby  repealed, 
except  as  to  any  cause  of  action  which  shall  have  ac- 
crued thereunder  prior  to  October  1,  1911. 

"§  31.  Distribution  of  funds  in  case  of  repeal.  If 
this  act  shall  be  hereafter  repealed,  all  moneys 
which  are  in  the  accident  fund  at  the  time  of  the 
repeal  shall  be  subject  to  such  disposition  as  may  be 
provided  by  the  legislature,  and  in  default  of  such 
legislative  provision  distribution  thereof  shall  be  in 
accordance  with  the  justice  of  the  matter,  due  regard 
being  had  to  obligations  of  compensation  incurred 
and  existing. 

"§  32.  Saving  clause.  This  act  shall  not  affect  any 
action  pending  or  cause  of  action  existing  on  the  30th 
day  of  September,  1911." 

If  the  employer  fails  to  pay  the  assessment  into  the 
insurance  the  workman  may  sue  for  damages  at  com- 
mon law  with  all  common-law  defenses  eliminated. 
See  §  8,  reprinted  in  Chapter  I,  ante,  page  34. 


REPEALING   ACTS  591 


Washington 


WISCONSIN 

(L.  1911,  c.  50) 

"§2394-31.  All  acts  or  parts  of  acts  inconsistent 
with  this  act  are  to  be  deemed  replaced  by  this  act, 
and  to  that  end  are  hereby  repealed. " 

For  powers  of  election  to  demand  damages  or  com- 
pensation see  Chapter  I,  ante,  page  38. 


CHAPTER  XXXVIII 

CONSTITUTIONAL  DECISIONS  ON  THE  COMPENSATION 

ACTS 

Page  Page 

New  York:  United   States   Supreme 

Ives  V.  South  Buffalo  Ry.  Court: 

Co 592  Second  Employers'  Lia- 

Massachusetts:  bility  Cases 785 

Opinions  of  Justices 650  Mondou  v.  A^.  Y.,  N.  H. 

Wisconsin:  &  H.  R.  Co 788 

Borgnis  v.  Folk  Co 656  Northern  Pac.  Ry.  Co.  v. 

Washington:  Babcock 789 

Stale  ex  rel.  Davis-Smith  New  York,  N.  H.  &  H.  R. 

Co.  V.  Clausen 703  Co.  v.  Walsh 790 

Ohio:  Walsh  v.  N.  Y.,  N.  H.  & 

State    ex    rel.    Yaple    v.  H.R.Co 790 

Creamer 764 

Earl  Ives  v.  South  Buffalo  Railway  Company  ^ 

(201  N.  Y.  271,  rev'g  140  App.  Div.  921) 

Workmen's  compensation  law;  abolition  of  common-law  de- 
fenses ;  constitutional  law ;  taking  property  of  employer  with- 
out due  process  of  law 

1.  Statutory  modification  of  the  "fellow-servant"  rule  and 
the  law  of  "contributory  negligence"  are  clearly  within 

1  This  case  has  had  a  profound  effect  upon  subsequent  legislation 
relating  to  the  workmen's  compensation  principle.  As  it  was  held 
that  a  mandatory  law  was  unconstitutional  the  legislatures  of  the 
other  States  have  passed  "optional,"  or  "elective"  statutes  in 
every  instance,  except  in  the  State  of  Washington.  These  other 
laws  provide  that  employers  and  employ6s  may  adopt  the  com- 
pensation principle,  or  not,  as  they  choose.    Then  they  have  en- 

592 


CONSTITUTIONAL   DECISIONS  593 

New  York 

the  legislative  power.  These  doctrines,  for  they  are  noth- 
ing more,  may  be  regulated  or  even  abolished.  This  is 
true  to  a  limited  extent  as  to  the  assumption  of  risk  by  the 
employe.  In  the  Labor  Law  and  the  Employers'  Liability 
Act,  which  define  the  risks  assumed  by  the  employ^,  there 
are  many  provisions  which  cast  upon  the  employer  a  great 
variety  of  duties  and  burdens  unknown  to  the  common 
law.  These  can  doubtless  be  still  further  multiplied  and 
extended  to  the  point  where  they  deprive  the  employer  of 
the  rights  guaranteed  by  our  constitutions  and  there  they 
must  stop. 
2.  Classification  for  purposes  of  taxation  or  regulation  under 
the  police  power,  is  a  legislative  function  with  which  the 
courts  have  no  right  to  interfere,  unless  it  is  so  clearly  ar- 
bitrary or  unreasonable  as  to  invade  some  constitutional 

deavored  to  force  both  employer  and  employ^  to  elect  to  adopt 
compensation  by  penalizing  both  for  their  refusal  to  so  elect.  The 
employers  who  fail  to  come  under  the  compensation  features  of  the 
various  statutes  are  penalized  by  being  prohibited  from  setting  up 
any  of  the  common-law  defenses  of  assumption  of  risk  and  negli- 
gence of  fellow  servant.  The  defense  of  contributory  negligence 
has  been  abolished  also,  in  whole  or  in  part,  as  to  such  employers  as 
refuse  to  embrace  compensation.  To  induce  employes  also  to  elect 
to  demand  "compensation"  in  place  of  "damages,"  it  is  provided 
generally  in  the  statutes  passed  since  the  Ives  case  was  decided, 
that  when  an  employer  elects  to  pay  compensation  and  his  em- 
ploy6  elects  to  reserve  his  common-law  right  of  action  for  damages, 
that  then  the  employer  is  free  to  set  up  the  three  common-law  de- 
fenses enumerated  above,  as  against  any  employ^  who  brings  an 
action  for  damages  under  such  a  reservation. 

While  the  legislatures  of  other  States  have  taken  this  method  of 
circumventing  the  doctrine  of  the  Ives  case  the  courts  of  Massa- 
chusetts, Ohio,  Washington  and  Wisconsin,  as  well  as  the  Supreme 
Court  of  the  United  States,  have  expressed  more  or  less  disap- 
proval of  the  doctrine  announced  by  the  New  York  Court  of  Ap- 
peals. The  other  decisions  to  which  reference  is  made  above  will 
be  found  in  a  subsequent  portion  of  this  chapter. 
38 


594    Bradbury's  workmen's  compensation  law 

New  York 

right.  A  State  may  classify  persons  and  objects  for  the 
purpose  of  legislation,  provided  the  classification  is  based 
on  proper  and  justifiable  distinctions  and  for  a  purpose 
within  the  legislative  power. 

3.  In  order  to  sustain  legislation  under  the  police  power  the 
courts  must  be  able  to  see  that  its  operation  tends  in  some 
degree  to  prevent  some  offense  or  evil,  or  to  preserve  pub- 
lic health,  morals,  safety  and  welfare.  If  it  discloses  no 
such  purpose,  but  is  clearly  calculated  to  invade  the  liberty 
and  property  of  private  citizens,  it  is  the  duty  of  the  courts 
to  declare  it  invalid,  for  legislative  assumption  of  the  right 
to  direct  the  channel  into  which  private  energies  of  the 
citizen  may  flow,  or  legislative  attempt  to  abridge  or  ham- 
per the  right  of  the  citizen  to  pursue,  unmolested  and 
without  unreasonable  regulation,  any  lawful  calling  or 
avocation  which  he  may  choose,  has  always  been  con- 
demned under  our  form  of  government. 

4.  A  statute  which  compels  an  employer  to  compensate  his 
employ^  for  injuries  without  regard  to  the  fault  of  the  em- 
ploy^ takes  the  property  of  the  employer  without  due 
process  of  law  and  is  therefore  repugnant  to  the  Four- 
teenth Amendment  of  the  Federal  Constitution  and  to 
similar  provisions  in  the  state  constitution,  nor  can  it  be 
justified  as  being  within  the  police  power  of  the  State. 

Appeal  from  a  judgment  of  the  Appellate  Division 
of  the  Supreme  Court  in  the  Fourth  Judicial  Depart- 
ment, entered  October  25,  1910,  which  aflfirmed  a  final 
judgment  in  favor  of  plaintiff  entered  upon  a  decision 
of  the  court  at  Special  Term  sustaining  a  demurrer  to 
the  answer. 

This  is  an  action  brought  by  an  employ^  against  his 
employer  to  recover  compensation  under  article  14a 
of  the  Labor  Law,  being  Chapter  674  of  the  Laws  of 
1910,  entitled  "An  act  to  amend  the  labor  law,  in  re- 


CONSTITUTIONAL   DECISIONS  595 

New  York 

lation  to  workmen's  compensation  in  certain  dangerous 
employments." 

The  complaint  alleges,  in  substance,  that  on  the 
second  day  of  April,  1910,  while  the  plaintiff  was  en- 
gaged in  his  work  as  a  switchman  on  defendant's 
steam  railroad,  he  was  injured  solely  by  reason  of  a 
necessary  risk  or  danger  of  his  employment;  that  at 
the  time  of  the  commencement  of  the  action  he  had 
been  totally  incapacitated  for  labor  for  a  period  of  three 
weeks,  and  that  such  incapacity  would  continue  for 
four  weeks  longer,  and  demands  judgment  for  compen- 
sation in  accordance  with  the  provisions  of  said  act 
for  a  period  of  five  weeks.  The  answer,  after  admit- 
ting all  the  allegations  of  the  complaint,  pleads  as  a  de- 
fense the  unconstitutionality  of  article  14a  of  the  Labor 
Law,  upon  the  ground  that  it  contravenes  certain  pro- 
visions of  the  Federal  and  state  constitutions.  The 
plaintiff  demurred  to  this  defense  on  the  ground  that 
it  was  insufficient  in  law  upon  the  face  thereof.  The 
issue  of  law  thus  presented  was  tried  at  Special  Term, 
where  the  demurrer  was  sustained.  Final  judgment 
was  entered  upon  this  decision,  and  the  defendant  ap- 
pealed to  the  Appellate  Division,  where  the  judgment 
was  affirmed  by  a  divided  court. 

This  statute  which  has  been  added  to  the  Labor  Law 
is  known  as  article  14a  thereof,  and  consists  of  twelve 
sections,  which  we  (^uote  in  full.  The  question  pre- 
sented upon  this  appeal  is  whether  it  is  repugnant  to 
any  of  the  provisions  of  the  Federal  and  state  constitu- 
tions invoked  by  the  defendant. 


596    Bradbury's  workmen's  compensation  law 

New  York 

"Workmen's  Compensation  in  Certain  Dangerous 
Employments 

"§215.  Application  of  article.  This  article  shall 
apply  only  to  workmen  engaged  in  manual  or  mechan- 
ical labor  in  the  following  employments,  each  of  which 
is  hereby  determined  to  be  especially  dangerous,  in 
which  from  the  nature,  conditions  or  riieans  of  prose- 
cution of  the  work  therein,  extraordinary  risks  to  the 
life  and  limb  of  workmen  engaged  therein  are  inher- 
ent, necessary  or  substantially  unavoidable,  and  as  to 
each  of  which  employments  it  is  deemed  necessary  to 
establish  a  new  system  of  compensation  for  accidents 
to*  workmen. 

"1.  The  erection  or  demolition  of  any  bridge  or 
building  in  which  there  is,  or  in  which  the  plans  and 
specifications  require,  iron  or  steel  frame  work. 

"2.  The  operation  of  elevators,  elevating  machines 
or  derricks  or  hoisting  apparatus  used  within  or  on  the 
outside  of  any  bridge  or  building  for  the  conveying 
of  materials  in  connection  with  the  erection  or  demoli- 
tion of  such  bridge  or  building. 

"3.  Work  on  scaffolds  of  any  kind  elevated  twenty 
feet  or  more  above  the  ground,  water,  or  floor  beneath 
in  the  erection,  construction,  painting,  alteration  or 
repair  of  buildings,  bridges  or  structures. 

"4.  Construction,  operation,  alteration  or  repair  of 
wires,  cables,  switchboards  or  apparatus  charged  with 
electric  currents. 

"5.  All  work  necessitating  dangerous  proximity  to 
gunpowder,  blasting  powder,  dynamite  or  any  other 
explosives,  where  the  same  are  used  as  instrumental- 
ities of  the  industry. 


CONSTITUTIONAL   DECISIONS  597 

New  York 

"6.  The  operation  on  steam  railroads  of  locomotives, 
engines,  trains,  motors  or  cars  propelled  by  gravity 
or  steam,  electricity  or  other  mechanical  power,  or 
the  construction  or  repair  of  steam  railroad  tracks  and 
roadbeds  over  which  such  locomotives,  engines,  trains, 
motors  or  cars  are  operated. 

''7.  The  construction  of  tunneis  and  subways. 

"8.  All  work  carried  on  under  compressed  air. 

''§216.  Definitions.  The  words,  'employer,'  'work- 
man' and  'employment,'  or  their  plurals,  used  in  this 
article,  shall  be  construed  to  apply  to  all  the  employ- 
ments above  described. 

"§217.  Basis  of  liability.  If,  in  the  course  of  any 
of  the  employments  above  described,  personal  injury 
by  accident  arising  out  of  and  in  the  course  of  the 
employment  after  this  article  takes  effect  is  caused 
to  any  workman  employed  therein,  in  whole  or  in  part, 
or  the  damage  or  injury  caused  thereby  is  in  whole  or 
part  contributed  to  by 

"a.  A  necessary  risk  or  danger  of  the  employment 
or  one  inherent  in  the  nature  thereof;  or 

"6.  Failure  of  the  employer  of  such  workmen  or 
any  of  his  or  its  officers,  agents  or  employes  to  exercise 
due  care,  or  to  comply  with  any  law  affecting  such  em- 
ployment; then  such  employer  shall,  subject- as  herein- 
after mentioned,  be  liable  to  pay  compensation  at  the 
rates  set  out  in  section  two  hundred  and  nineteen-a 
of  this  title;  provided  that  the  employer  shall  not  be 
liable  in  respect  of  any  injury  which  does  not  dis- 
able the  workman  for  a  period  of  at  least  two  weeks 
from  earning  full  wages  at  the  work  at  which  he  was 
employed,  and  provided  that  the  employer  shall  not 
be  Uable  in  respect  of  any  injury  to  the  workman  which 


k 


598    bhadbury's  workmen's  compensation  law 

New  York 

is  caused  in  whole  or  in  part  by  the  serious  and  willful 
misconduct  of  the  workman. 

"§218.  Rights  of  action  not  affected.  The  right  of 
action  for  damages  caused  by  any  such  injury,  at  com- 
mon law  or  under  any  statute  in  force  on  January  one, 
nineteen  hundred  and  ten,  shall  not  be  affected  by  this 
article,  and  every  existing  right  of  action  for  negligence 
or  to  recover  damages  for  injuries  resulting  in  death 
is  continued,  and  nothing  in  this  article  shall  be  con- 
strued as  limiting  such  right  of  action,  but  in  case  the 
injured  workman,  or  in  event  of  his  death  his  executor 
or  administrator,  shall  avail  himself  of  this  article, 
either  by  accepting  any  compensation  hereunder  in 
accordance  with  section  two  hundred  and  nineteen-a 
hereof,  or  by  beginning  proceedings  therefor  in  any 
manner  on  account  of  any  such  injury,  he  shall  be 
barred  from  recovery  in  and  deemed  thereby  to  have 
released  every  other  action  at  cormnon  law  or  under 
any  other  statute  on  account  of  the  same  injury  after 
this  article  takes  effect.  In  case  after  such  injury  the 
workman,  or  in  the  event  of  his  death  his  executor  or 
administrator,  shall  commence  any  action  at  common 
law  or  under  any  statute  other  than  this  article  against 
the  employer  therefor  he  shall  be  barred  from  all  bene- 
fit of  this  article  in  regard  thereto. 

"§219.  Notice  of  accident.  No  proceedings  for  com- 
pensation under  this  article  shall  be  maintained  unless 
notice  of  the  accident  as  hereinafter  provided  has  been 
given  to  the  employer  as  soon  as  practicable  after  the 
happening  thereof  and  before  the  workman  has  volun- 
tarily left  the  employment  in  which  he  was  injured, 
and  during  such  disability,  but  no  want  or  defect  or 
inaccuracy  of  a  notice  shall  be  a  bar  to  the  maintenance 


CONSTITUTIONAL   DECISIONS  599 

New  York 

of  proceedings  unless  the  employer  proves  that  he  is 
prejudiced  by  such  want,  defect  or  inaccuracy.  Notice 
of  the  accident  shall  state  the  name  and  address  of  the 
workman  injured,  the  date  and  place  of  the  accident, 
and  in  simple  language  the  physical  cause  thereof,  if 
known.  The  notice  may  be  served  personally  or  by 
sending  it  by  mail  in  a  registered  letter  addressed  to 
the  employer  at  his  last  known  residence  or  place  of 
business. 

"§  219a.  Scale  of  compensation.  The  amount  of  com- 
pensation shall  be  in  case  death  results  from  injury: 

*'a.  If  the  workman  leaves  a  widow  or  next  of  kin 
at  the  time  of  his  death  wholly  dependent  on  his  earn- 
ings, a  sum  equal  to  twelve  hundred  times  the  daily 
earnings  of  such  workman  at  the  rate  at  which  he  was 
being  paid  by  such  employer  at  the  time  of  the  injury 
subject  as  hereinafter  provided,  and  in  no  event  mote 
than  three  thousand  dollars.  Any  weekly  payments 
made  under  this  article  shall  be  deducted  in  ascer- 
taining such  amount. 

"b.  If  such  widow  or  next  of  kin  at  the  time  of  his 
death  are  in  part  only  dependent  upon  his  earnings, 
such  proportionate  sum  not  exceeding  that  provided 
in  subdivision  a  as  may  be  determined  according  to  the 
injury  to  such  dependents. 

''c.  If  he  leaves  no  dependents,  the  reasonable  ex- 
penses of  his  medical  attendance  and  burial,  not  ex- 
ceeding one  hundred  dollars. 

**  Whatever  sum  may  be  determined  to  be  payable 
under  this  article  in  case  of  death  of  the  injured  work- 
man shall  be  paid  to  his  legal  representative  for  the 
benefit  of  such  dependents,  or  if  he  leaves  no  such 
dependents,  for  the  benefit   of  the   persons  to  whom 


600    Bradbury's  workmen's  compensation  law 

New  York 

the  expenses  of  medical  attendance  and  burial  are 
due. 

*'2.  Where  total  or  partial  incapacity  for  work  at 
any  gainful  employment  results  to  the  workman  from 
the  injury,  a  weekly  payment  commencing  at  the  end 
of  the  second  week  after  the  injury  and  continuing 
during  such  incapacity,  subject  as  herein  provided, 
equal  to  fifty  per  centum  of  his  average  weekly  earnings 
when  at  work  on  full  time  during  the  preceding  year 
during  which  he  shall  have  been  in  the  employment 
of  the  same  employer,  or  if  he  shall  have  been  in  the 
employment  of  the  same  employer  for  less  than  a  year, 
then  a  weekly  payment  of  not  exceeding  three  times 
the  average  daily  earnings  on  full  time  for  such  less 
period.  In  fixing  the  amount  of  the  weekly  payment, 
regard  shall  be  had  to  the  difference  between  the  amount 
of  the  average  earnings  of  the  workman  before  the 
accident  and  the  average  amount  he  is  able  to  earn 
thereafter  as  wages  in  the  same  employment  or  other- 
wise. In  fixing  the  amount  of  the  weekly  payment, 
regard  shall  be  had  to  any  payment,  allowance  or 
benefit  which  the  workman  may  have  received  from 
the  employer  during  the  period  of  his  incapacity,  and 
in  the  case  of  partial  incapacity  the  weekly  payment 
shall  in  no  case  exceed  the  difference  between  the  amount 
of  the  average  weekly  earnings  of  the  workman  before 
the  accident  and  the  average  weekly  amount  which  he 
is  earning  or  is  able  to  earn  in  the  same  employment 
or  otherwise  after  the  accident,  but  shall  amount  to 
one-half  of  such  difference.  In  no  event  shall  any  com- 
pensation paid  under  this  article  exceed  the  damage  suf- 
fered, nor  shall  any  weekly  payment  payable  under  this 
article  in  any  event  exceed  ten  dollars  a  week  or  extend 


CONSTITUTIONAL   DECISIONS  601 

New  York 

over  more  than  eight  years  Jrom  the  date  of  the  acci- 
dent. 

''§2196.  Medical  examinations.  Any  workman  en- 
titled to  receive  weekly  payments  under  this  article 
is  required,  if  requested  by  the  employer,  to  submit 
himself  for  examination  by  a  duly  qualified  medical 
practitioner  or  surgeon  provided  and  paid  for  by  the 
employer,  at  a  time  and  place  reasonably  convenient 
for  the  workman,  within  three  weeks  after  the  injury, 
and  thereafter  at  intervals  not  oftener  than  once  in 
six  weeks.  If  the  workman  refuses  to  submit  to  such 
examination,  or  obstructs  the  same,  his  right  to  weekly 
payments  shall  be  suspended  until  such  examination 
has  taken  place,  and  no  compensation  shall  be  payable, 
during  or  for  account  of  such  period. 

"§219c.  Incompetency  of  workman.  In  case  an  in- 
jured workman  shall  be  mentally  incompetent  at  the 
time  when  any  right  or  privilege  accrues  to  him  under 
this  article,  a  committee  or  guardian  of  the  incompetent 
appointed  pursuant  to  law  may,  on  behalf  of  such 
incompetent,  claim  and  exercise  any  such  right  or 
privilege  with  the  same  force  and  effect  as  if  the  work- 
man himself  had  been  competent  and  had  claimed 
or  exercised  any  such  right  or  privilege;  and  no  limita- 
tion of  time  in  this  article  provided  for  shall  run  so 
long  as  said  incompetent  workman  has  no  committee 
or  guardian. 

"§219d.  Settlement  of  disputes.  Any  question  which 
may  arise  under  this  act  shall  be  determined  either  by 
agreement  or  by  arbitration  as  provided  in  the  Code 
of  Civil  Procedure  or  by  an  action  at  law  as  herein 
provided.  In  case  the  employer  fail  to  make  compen- 
sation as  herein  provided,  the  injured  workman,  or  his 


602    Bradbury's  workmen's  compensation  law 

New  York 

committee  or  guardian,  if  such  be  appointed,  or  his 
executor  or  administrator,  may  then  bring  an  action 
to  recover  compensation  under  this  article  in  any  court 
having  jurisdiction  thereof,  or  in  any  court  which  would 
have  had  jurisdiction  of  an  action  for  recovery  of  dam- 
ages for  negligence  for  the  same  injury  between  the 
same  parties.  This  article,  however,  shall  not  be  con- 
strued as  extending  the  jurisdiction  of  any  such  court 
to  award  judgment  for  an  amount  greater  than  now 
allowed  by  law.  Such  action  shall  be  conducted  in 
the  same  manner  as  actions  at  law  for  the  recovery 
of  damages  for  negligence.  The  judgment  in  such 
action  if  in  favor  of  the  plaintiff  shall  be  for  a  sum 
equal  to  the  amount  of  payments  then  due  and  prospec- 
tively due  under  this  article.  Such  action  must  be  com- 
menced within  six  months  after  the  happening  of  the 
accident  or  in  case  of  the  death  of  the  workman  by 
such  accident  within  six  months  after  the  appointment 
of  his  legal  representative  in  this  State,  or  in  the  event 
of  his  physical  incapacity,  within  six  months  after  the 
removal  thereof,  or  in  the  event  of  weekly  payments 
by  the  employer  hereunder,  within  six  months  after 
such  payments  have  ceased.  In  such  an  action  by 
an  executor  or  administrator  the  judgment  may  provide 
the  proportions  of  the  award  or  the  costs  to  be  distrib- 
uted to  or  between  the  several  dependents.  If  such 
determination  is  not  made  it  shall  be  determined  by 
the  Surrogate's  Court,  in  which  such  executor  or  ad- 
ministrator is  appointed,  in  accordance  with  this  article, 
on  petition  of  any  party  interested  on  such  notice  as 
such  court  may  direct. 

"  §  219e.  Preferences  and  exemptions.    Any  person  en- 
titled to  weekly  payments  under  this  article  against 


CONSTITUTIONAL   DECISIONS  603 

New  York 

any  employer  shall  have  the  same  preferential  claim 
therefor  against  the  assets  of  the  employer  as  allowed 
by  law  for  a  claim  by  such  person  against  such  em- 
ployer for  unpaid  wages  or  personal  services.  Weekly 
pajmients  due  under  this  article  shall  not  be  assignable 
or  subject  to  levy,  execution  or  attachment. 

"§219/.  Attorneys'  liens.  No  claim  of  an  attorney 
at  law  for  any  contingent  interest  in  any  recovery  under 
this  article  for  services  in  securing  such  recovery  or  for 
disbursements  shall  be  an  enforceable  hen  on  such 
recovery,  unless  the  amount  of  the  same  be  approved 
in  writing  by  a  justice  of  the  Supreme  Court,  or  in 
case  the  same  be  tried  in  any  court,  by  the  justice 
presiding  at  such  trial. 

''§2199'.  Liability  of  principal  contractors.  If  an  em- 
ployer who  shall  be  the  principal  enters  into  a  contract 
with  an  independent  contractor,  to  do  part  of  such 
employer's  work,  or  if  such  contractor  enters  into  a 
contract  with  a  subcontractor  to  do  all  or  any  part  of 
the  work  comprised  in  such  contractor's  contract  with 
the  employer,  the  said  principal  shall  be  hable  to  pay 
to  any  workman  employed  in  the  execution  of  the 
work  any  compensation  under  this  article  which  he 
would  have  been  liable  to  pay  if  that  workman  had 
been  immediately  employed  by  him;  and  where  com- 
pensation is  claimed  from  or  proceedings  are  taken 
against  the  principal  then,  in  the  application  of  this 
article,  references  to  the  principal  shall  be  substituted 
for  references  to  the  employer,  except  that  the  amount 
of  compensation  shall  be  calculated  with  reference  to 
the  earnings  of  the  workman  under  the  contractor  or 
employer  by  whom  he  is  immediately  employed.  Where 
such  principal  is  Uable  to  pay  compensation  he  shall 


604    Bradbury's  workmen's  compensation  law 

New  York 

be  entitled  to  be  indemnified  by  any  person  who  would 
have  been  liable  to  pay  compensation  to  the  workman 
independently  of  this  section.  Nothing  in  this  section 
shall  be  construed  as  preventing  a  workman  from  re- 
covering compensation  under  this  article  from  the  con- 
tractor or  subcontractor,  instead  of  the  principal;  nor 
shall  this  section  apply  in  any  case  where  the  accident 
shall  occur  elsewhere  than  on,  or  in,  or  about  the  prem- 
ises on  which  the  principal  has  undertaken  to  execute 
the  work  or  which  are  otherwise  under  his  control  or 
management." 

Louis  Marshall,  Charles  B.  Sears  and  Louis  L.  Bab- 
cock,  for  appellant. 

Juhen  T.  Dairies  and  Harold  Harper  for  New  York 
Dock  Company,  intervening. 

Thomas  C.  Burke,  for  respondent. 

Everett  P.  Wheeler  for  Civic  Federation,  intervening. 

Joseph  P.  Cotton,  Jr.,  intervening. 

Werner,  J.: 

In  1909  the  legislature  passed  a  law  (Chapter  518) 
providing  for  a  commission  of  fourteen  persons,  six  of 
whom  were  to  be  appointed  by  the  governor,  three  by 
the  president  of  the  senate  from  the  senate,  and  five 
by  the  speaker  of  the  assembly  from  the  assembly, 
"to  make  inquiry,  examination  and  investigation  into 
the  working  of  the  law  in  the  State  of  New  York  relative 
to  the  liability  of  employers  to  employes  for  industrial 


CONSTITUTIONAL   DECISIONS  605 

New  York 

accidents,  and  into  the  comparative  efficiency,  cost, 
justice,  merits  and  defects  of  the  laws  of  other  indus- 
trial States  and  countries,  relative  to  the  same  subject, 
and  as  to  the  causes  of  the  accidents  to  employes." 
The  act  contained  other  provisions  germane  to  the 
subject  and  provided  for  a  full  and  final  report  to  the 
legislature  of  1910,  if  practicable,  and  if  not  practicable, 
then  to  the  legislature  of  1911,  with  such  recommenda- 
tions for  legislation  by  bill  or  otherwise  as  the  commis- 
sion might  deem  wise  or  expedient.  Such  a  commission 
was  appointed  and  promptly  organized  by  the  election 
of  officers  and  the  appointment  of  subcommittees,  the 
chairman  being  Senator  Wainwright,  from  whom  it 
has  taken  the  name  of  the  ''Wainwright  Commission," 
by  which  it  is  popularly  known.  No  word  of  praise 
could  overstate  the  industry  and  intelhgence  of  this 
commission  in  dealing  with  a  subject  of  such  manifold 
ramifications  and  of  such  far-reaching  importance  to 
the  State,  to  employers  and  to  employes.  We  cannot 
dwell  in  detail  upon  the  many  excellent  features  of 
its  comprehensive  report,  because  the  limitations  of 
time  and  space  must  necessarily  confine  us  to  such  of 
its  aspects  as  have  a  necessary  relation  to  the  legal 
questions  which  we  are  called  upon  to  decide.  As  the 
result  of  its  labors  the  commission  recommended  for 
adoption  the  bill  which,  with  slight  changes,  was  en- 
acted into  law  by  the  legislature  of  1910,  under  the 
designation  of  article  14a  of  the  Labor  Law.  This  act 
is  modeled  upon  the  English  Workmen's  Compensation 
Act  of  1897,  which  has  since  been  extended  so  as  to  cover 
every  kind  of  occupational  injury.  Our  commission 
has  frankly  stated  in  its  report  that  the  classification 
of  the  industries  which  will  be  immediately  affected 


606    bradbuey's  workmen's  compensation  law 

New  York 

by  the  present  statute  is  only  tentative,  and  that  other 
more  extended  classifications  will  probably  be  rec- 
ommended to  the  legislature  for  its  action. 

The  statute,  judged  by  our  common-law  standards, 
is  plainly  revolutionary.  Its  central  and  controlling 
feature  is  that  every  employer  who  is  engaged  in  any 
of  the  classified  industries  shall  be  liable  for  any  injury 
to  a  workman  arising  out  of  and  in  the  course  of  the 
employment  by  "sl  necessary  risk  or  danger  of  the 
employmentor  one  inherent  in  the  nature  thereof;  *  *  * 
provided  that  the  employer  shall  not  be  liable  in  respect 
of  any  injury  to  the  workman  which  is  caused  in  whole 
or  in  part  by  the  serious  and  willful  misconduct  of  the 
workman."  This  rule  of  liability,  stated  in  another 
form,  is  that  the  employer  is  responsible  to  the  employ^ 
for  every  accident  in  the  course  of  the  employment, 
whether  the  employer  is  at  fault  or  not,  and  whether 
the  employe  is  at  fault  or  not,  except  when  the  fault 
of  the  employe  is  so  grave  as  to  constitute  serious  and 
willful  misconduct  on  his  part.  The  radical  character 
of  this  legislation  is  at  once  revealed  by  contrasting 
it  with  the  rule  of  the  common  law,  under  which  the 
employer  is  liable  for  injuries  to  his  employ6  only  when 
the  employer  is  guilty  of  some  act  or  acts  of  negligence 
which  caused  the  occurrence  out  of  which  the  injuries 
arise,  and  then  only  when  the  employe  is  shown  to  be 
free  from  any  negligence  which  contributes  to  the  oc- 
currence. The  several  judicial  and  statutory  modifica- 
tions of  this  broad  rule  of  the  common  law  we  shall 
further  on  have  occasion  to  mention.  Just  now  our 
purpose  is  to  present  in  sharp  juxtaposition  the  funda- 
mentals of  these  two  opposing  rules,  namely,  that  under 
the  conmaon  law  an  employer  is  liable  to  his  injured 


CONSTITUTIONAL   DECISIONS  607 

New  York 

employ^  only  when  the  employer  is  at  fault  and  the 
employe  is  free  from  fault ;  while  under  the  new  statute 
the  employer  is  liable,  although  not  at  fault,  even  when 
the  employe  is  at  fault,  unless  this  latter  fault  amounts 
to  serious  and  willful  misconduct.  The  reasons  for 
this  departure  from  our  long-estabUshed  law  and  usage 
are  summarized  in  the  language  of  the  commission  as 
follows : 

''First,  that  the  present  system  in  New  York  rests 
on  a  basis  that  is  economically  unwise  and  unfair,  and 
that  in  operation  it  is  wasteful,  uncertain  and  productive 
of  antagonism  between  workmen  and  employers. 

"Second,  that  it  is  satisfactory  to  none  and  tolerable 
only  to  those  employers  and  workmen  who  practically 
disregard  their  legal  rights  and  obligations,  and  fairly 
share  the  burden  of  accidents  in  industries. 

"  Third,  that  the  evils  of  the  system  are  most  marked 
in  hazardous  employments,  where  the  trade  risk  is 
high  and  serious  accidents  frequent. 

"Fourth,  that,  as  matter  of  fact,  workmen  in  the 
dangerous  trades  do  not,  and  practically  cannot,  pro- 
vide for  themselves  adequate  accident  insurance,  and, 
therefore,  the  burden  of  serious  accidents  falls  on  the 
workmen  least  able  to  bear  it,  and  brings  many  of  them 
and  their  families  to  want." 

This  indictment  of  the  old  system  is  followed  by  a 
statement  of  the  anticipated  benefits  under  the  new 
statute  as  follows:  ''These  results  can,  we  think,  be 
best  avoided  by  compelling  the  employer  to  share  the 
accident  burden  in  intrinsically  dangerous  trades,  since 
by  fixing  the  price  of  his  product  the  shock  of  the  acci- 
dent may  be  borne  by  the  community.  In  those  em- 
ployments which  have  not  so  great  an  element  of  danger, 


608    Bradbury's  workmen's  compensation  law 

New  York 

in  which,  speaking  generally,  there  is  no  such  imperative 
demand  for  the  exercise  of  the  police  power  of  the  State 
for  the  safeguarding  of  its  workers  from  destitution 
and  its  consequences,  we  recommend,  as  the  first  step 
in  this  change  of  system,  such  amendment  of  the  present 
law  as  will  do  away  with  some  of  its  unfairness  in  theory 
and  practice,  and  increase  the  workman's  chance  of 
recovery  under  the  law.  With  such  changes  in  the 
law  we  couple  an  elective  plan  of  compensation  which, 
if  generally  adopted,  will  do  away  with  many  of  the 
evils  of  the  present  system.  Its  adoption  will,  we  be- 
lieve, be  profitable  to  both  employer  and  employe, 
and  prove  to  be  the  simplest  way  for  the  State  to  change 
its  system  of  liability  without  disturbance  of  industrial 
conditions.  Not  the  least  of  the  motives  moving  us  is 
the  hope  that  by  these  means  a  source  of  antagonism 
between  employer  and  employed,  pregnant  with  danger 
for  the  State,  may  be  eliminated." 

This  quoted  siunmary  of  the  report  of  the  commission 
to  the  legislature,  which  clearly  and  fairly  epitomizes 
what  is  more  fully  set  forth  in  the  body  of  the  report, 
is  based  upon  a  most  voluminous  array  of  statistical 
tables,  extracts  from  the  works  of  philosophical  writers 
and  the  industrial  laws  of  many  countries,  all  of  which 
are  designed  to  show  that  our  own  system  of  dealing 
with  industrial  accidents  is  economically,  morally  and 
legally  unsound.  Under  our  form  of  government,  how- 
ever, courts  must  regard  all  economic,  philosophical 
and  moral  theories,  attractive  and  desirable  though 
they  may  be,  as  subordinate  to  the  primary  question 
whether  they  can  be  molded  into  statutes  without 
infringing  upon  the  letter  or  spirit  of  our  written  con- 
stitutions.   In  that  respect  we  are  unlike  any  of  the 


CONSTITUTIONAL   DECISIONS  609 


New  York 


countries  whose  industrial  laws  are  referred  to  as  models 
for  our  guidance.  Practically  all  of  these  countries 
are  so-called  constitutional  monarchies  in  which,  as 
in  England,  there  is  no  written  constitution,  and  the 
Parliament  or  lawmaking  body  is  supreme.  In  our 
country  the  Federal  and  state  constitutions  are  the 
charters  which  demark  the  extent  and  the  limitations 
of  legislative  power;  and  while  it  is  true  that  the  rigidity 
of  a  written  constitution  may  at  times  prove  to  be 
a  hindrance  to  the  march  of  progress,  yet  more  often 
its  stability  protects  the  people  against  the  frequent 
and  violent  fluctuations  of  that  which,  for  want  of  a 
better  name,  we  call  public  opinion. 

With  these  considerations  in  mind  we  turn  to  the 
purely  legal  phases  Of  the  controversy  for  the  purpose 
of  disposing  of  some  things  which  are  incidental  to 
the  main  question.  The  new  statute,  as  we  have  ob- 
served, is  totally  at  variance  with  the  common-law 
theory  of  the  employer's  liability.  Fault  on  his  part 
is  no  longer  an  element  of  the  employe's  right  of 
action.  This  change  necessarily  and  logically  carries 
with  it  the  abrogation  of  the  ''fellow-servant"  doctrine, 
the  ''contributory  negligence"  rule,  and  the  law  relat- 
ing to  the  employe's  assumption  of  risks.  There  can 
be  no  doubt  that  the  first  two  of  these  are  subjects 
clearly  and  fully  w:ithin  the  scope  of  legislative  power; 
and  that  as  to  the  third,  this  power  is  limited  to  some 
extent  by  constitutional  provisions. 

The  "fellow-servant"  rule  is  one  of  judicial  origin 
engrafted  upon  the  common  law  for  the  protection  of 
the  master  against  the  consequences  of  negligence  in 
which  he  has  no  part.  In  its  early  application  to  simple 
industrial  conditions  it  had  the  support  of  both  reason 
39 


610    Bradbury's  workmen's  compensation  law 

New  York 

and  justice.  By  degrees  it  was  extended  until  it  be- 
came evident  that  under  the  enormous  expansion  and 
infinite  complexity  of  our  modern  industrial  conditions 
the  rule  gave  opportunity,  in  many  instances,  for  harsh 
and  technical  defenses.  In  recent  years  it  has  been 
much  restricted  in  its  appHcation  to  large  corporate 
and  industrial  enterprises,  and  still  more  recently  it 
has  been  modified  and,  to  some  extent  abolished,  by  the 
Labor  Law  and  the  Employers'  Liability  Act. 

The  law  of  contributory  negligence  has  the  support 
of  reason  in  any  system  of  jurisprudence  in  which  the 
fault  of  one  is  the  basis  of  liability  for  injury  to  an- 
other. Under  such  a  system  it  is  at  least  logical  to 
hold  that  one  who  is  himself  to  blame  for  his  injuries 
should  not  be  permitted  to  entail  the  consequences 
upon  another  who  has  not  been  negligent  at  all,  or 
whose  negligence  would  not  have  caused  the  injury  if 
the  one  injured  had  been  free  from  fault.  It  may  be 
admitted  that  the  reason  of  the  rule  is  often  lost  sight 
of  in  the  effort  to  apply  it  to  a  great  variety  of  practical 
conditions,  and  that  its  efficacy  as  a  rule  of  justice  is 
much  impaired  by  the  lack  of  uniformity  in  its  ad- 
ministration. In  the  admiralty  branch  of  the  Federal 
courts,  for  instance,  we  have  what  is  known  as  the  rule 
of  comparative  negligence  under  which,  when  there  is 
negligence  on  both  sides,  it  is  apportioned  and  a  ver- 
dict rendered  accordingly.  In  many  of  the  States  con- 
tributory negligence  is  a  defense  which  must  be  pleaded 
and  proved  by  the  defendant,  and  in  some  States  it 
has  been  entirely  abrogated  by  statute.  In  our  own 
State  the  plaintiff's  freedom  from  contributory  negli- 
gence is  an  essential  part  of  his  cause  of  action  which 
must  be  affirmatively  established  by  him,  except  in 


CONSTITUTIONAL   DECISIONS  611 


New  York 


cases  brought  b}^  employes  under  the  Labor  Law,  by- 
virtue  of  which  the  contributory  negUgence  of  an  em- 
ploye is  now  made  a  defense  which  must  be  pleaded 
and  proved  by  the  employer;  and  under  the  Employers' 
Liability  Act  which  provides  that  the  employe's  con- 
tinuance in  his  employment  after  he  has  knowledge  of 
dangerous  conditions  from  which  injury  may  ensue, 
shall  not,  as  matter  of  law,  constitute  contributory 
negligence. 

Under  the  common  law  the  employ^  was  also  held 
to  have  assumed  the  ordinary  and  obvious  risks  in- 
cident to  the  emploj^ment,  as  well  as  the  special  risks 
arising  out  of  dangerous  conditions  w^hich  were  known 
and  appreciated  by  him.  This  doctrine,  too,  has  been 
modified  by  statute  so  that  under  the  Labor  Law  and 
the  Employers'  Liability  Act  the  employ^  is  presumed 
to  have  assented  to  the  necessary  risks  of  the  occupa- 
tion or  employment  and  no  others;  and  these  necessary 
risks  are  defined  as  those  only  which  are  inherent  in 
the  nature  of  the  business  and  exist  after  the  employer 
has  exercised  due  care  in  providing  for  the  safety  of 
his  employes,  and  has  complied  with  the  laws  affecting 
or  regulating  the  business  or  occupation  for  the  greater 
safety  of  employes. 

We  have  said  enough  to  show  that  the  statutory 
modifications  of  the  ''fellow-servant"  rule  and  the  law 
of  "contributory  negligence"  are  clearly  within  the 
legislative  power.  These  doctrines,  for  they  are  nothing 
more,  may  be  regulated  or  even  abolished.  This  is 
true  to  a  limited  extent  as  to  the  assumption  of  risk 
by  the  employe.  In  the  Labor  Law  and  the  Employers' 
Liability  Act,  which  define  the  risks  assumed  by  the 
employe,  there  are  many  provisions  which  cast  upon 


612    Bradbury's  workmen's  compensation  law 

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the  employer  a  great  variety  of  duties  and  burdens 
unknown  to  the  common  law.  These  can  doubtless 
be  still  further  multiplied  and  extended  to  the  point 
where  they  deprive  the  employer  of  rights  guaranteed 
to  him  by  our  constitutions,  and  there,  of  course,  they 
must  stop,  as  we  shall  endeavor  to  demonstrate  later 
on. 

Passing  now  to  the  constitutional  objections  which 
are  presented  against  the  new  statute,  we  will  first 
eliminate  those  which  we  regard  as  clearly  or  probably 
untenable.  The  appellant  argues  and  the  respondent 
admits  that  the  new  statute  cannot  be  upheld  under 
the  reserved  power  of  the  legislature  to  alter  and  amend 
charters.  It  is  true  that  the  defendant  in  the  case  at 
bar  is  a  railroad  corporation,  but  the  act  applies  to 
eight  enumerated  occupations  or  industries  without  re- 
gard to  the  character  of  the  employers.  They  may 
be  corporations,  firms  or  individuals.  Nowhere  in 
the  act  is  there  any  reference  to  corporations.  The 
liability  sought  to  be  imposed  is  based  upon  the  nature 
of  the  employment  and  not  upon  the  legal  status  of 
the  employer.  It  is,  therefore,  unnecessary  to  decide 
how  far  corporate  liability  may  be  extended  under  the 
reserved  power  to  alter  or  amend  charters,  except  as 
that  question  may  be  incidentally  discussed  in  consider- 
ing the  police  power  of  the  State. 

The  appellant  contends  that  the  classification  in 
this  statute,  of  a  limited  number  of  employments  as 
dangerous,  is  fanciful  or  arbitrary  and  is  therefore  re- 
pugnant to  that  part  of  the  Fourteenth  Amendment 
to  the  Federal  Constitution  which  guarantees  to  all 
our  citizens  the  equal  protection  of  the  laws.  Classi- 
fication for  purposes  of  taxation  or  of  regulation  under 


CONSTITUTIONAL  DECISIONS  613 

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the  police  power,  is  a  legislative  function  with  which 
the  courts  have  no  right  to  interfere  unless  it  is  so 
clearly  arbitrary  or  unreasonable  as  to  invade  some 
constitutional  right.  A  State  may  classify  persons  and 
objects  for  the  purpose  of  legislation  provided  the 
classification  is  based  on  proper  and  justifiable  dis- 
tinctions (St.  John  V.  New  York,  201  U.  S.  633 ;  Missouri 
Pac.  Ry.  Co.  v.  Mackey,  127  U.  S.  205;  Minneapolis  & 
St.  L.  Ry.  Co.  V.  Herrick,  127  U.  S.  210;  Chicago,  K.  & 
W.  R.  R.  Co.  V.  Pontius,  157  U.  S.  209),  and  for  a  pur- 
pose within  the  legislative  power.  There  can  be  no 
doubt,  we  think,  that  all  of  the  occupations  enumerated 
in  the  statute  are  more  or  less  inherently  dangerous 
to  a  degree  which  justifies  such  legislative  regulation 
as  is  properly  within  the  scope  of  the  police  power. 
"We  need  not  look  for  illustration  or  authority  outside 
of  the  Labor  Law  to  which  this  new  statute  has  been 
added.  The  whole  of  that  law  which  precedes  the  latest 
addition  is  devoted  to  restrictions  and  regulations  im- 
posed upon  employers  in  specified  occupations  or  con- 
ditions for  the  conservation  of  the  health,  safety  and 
m.orals  of  employes.  These  restrictions  and  regulations 
do  not  affect  all  employers  alike  in  all  occupations, 
nor  are  they  designed  to  have  that  effect.  The  man- 
date of  the  Federal  Constitution  is  complied  with  if 
all  who  are  in  a  particular  class  are  treated  alike  {Mis- 
souri Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512,  523;  Barbier 
v.  Connolly,  113  U.  S.  27;  Soon  Hing  v.  Crowley,  113 
U.  S.  703;  Magoun  v.  III.  Trust  &  Sav.  Bank,  170  U.  S. 
283,  294;  People  ex  rel.  Hatch  v.  Reardon,  184  N.  Y. 
431;  People  ex  rel.  Farrington  v.  Mensching,  187  N.  Y. 
8,  16),  and  that,  we  think,  is  the  effect  of  this  classi- 
fication. 


614    Bradbury's  workmen's  compensation  law 

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Another  objection  urged  against  the  statute  is  that 
it  violates  §  2  of  article  1  of  our  state  constitution  which 
provides  that  ''The  trial  by  jury  in  all  cases  in  which 
it  has  been  heretofore  used  shall  remain  inviolate  for- 
ever." This  objection  is  aimed  at  the  provisions  of 
§§  219a  and  219d  of  the  statute,  which  relate  to  the 
"scale  of  compensation"  and  ''settlement  of  disputes," 
and  has  no  reference  to  the  fundamental  question 
whether  the  attempt  to  impose  upon  the  employer  a 
liability  when  he  is  not  at  fault,  constitutes  a  taking  of 
property  without  due  process  of  law.  In  other  words,  the 
objection  which  we  are  now  considering  bears  solely  upon 
the  question  whether  the  two  last-mentioned  sections 
of  the  statute  deprive  the  employer  of  the  right  to  have 
a  jury  fix  the  amount  which  he  shall  pay  when  his  lia- 
bility to  pay  has  been  determined  against  him.  If 
these  provisions  relating  to  compensation  are  to  be 
construed  as  definitely  fixing  the  amount  which  an  em- 
ployer must  pay  in  every  case  where  his  liability  is  estab- 
lished by  the  statute,  there  can  be  no  doubt  that  they  con- 
stitute a  legislative  usurpation  of  one  of  the  functions  of 
a  common-law  jury.  In  all  cases  where  there  is  a  right 
to  trial  by  jury  there  are  two  elements  which  necessarily 
enter  into  a  verdict  for  the  plaintiff:  1.  The  right  to  re- 
cover. 2.  The  amount  of  the  recovery.  It  is  as  much 
the  right  of  a  defendant  to  have  a  jury  assess  the  dam- 
ages claimed  against  him  as  it  is  to  have  the  question 
of  his  liability  determined  by  the  same  body.  East 
Kingston  v.  Towle,  48  N.  II.  57;  Wadsworth  v.  Union 
Pacific  Ry.  Co.,  18  Colo.  600;  Fairchild  v.  Rich,  68  Vt. 
202.  This  part  of  the  statute,  in  its  present  form,  has 
given  rise  to  conflicting  views  among  the  members  of 
the  court,  and  since  the  disposition  of  the  question 


CONSTITUTIONAL   DECISIONS  615 

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which  it  suggests  is  not  necessary  to  the  decision  of 
the  case,  we  do  not  decide  it. 

Thus  far  we  have  considered  only  such  portions  of 
the  statute  as  we  deem  to  be  clearly  within  the  legis- 
lative power,  and  one  as  to  which  there  is  difference  of 
opinion.  This  we  have  done  because  we  desire  to  pre- 
sent no  purely  technical  or  hypercritical  obstacles  to 
any  plan  for  the  beneficent  reformation  of  a  branch  of 
our  jurisprudence  in  which,  it  may  be  conceded,  reform 
is  a  consummation  devoutly  to  be  wished.  In  this 
spirit  we  have  called  attention  to  those  features  of  the 
new  statute  which  might  be  upheld  as  consonant  with 
legislative  authority  under  our  constitutional  limita- 
tions, as  well  as  to  the  sections  upon  which  we  are  in 
doubt.  We  turn  now  to  the  two  objections  which  we 
regard  as  fatal  to  its  validity. 

This  legislation  is  challenged  as  void  under  the  Four- 
teenth Amendment  to  the  Federal  Constitution  and 
under  §  6,  article  1  of  our  state  constitution,  which 
guarantee  all  persons  against  deprivation  of  life,  liberty 
or  property  without  due  process  of  law.  We  shall  not 
stop  to  dwell  at  length  upon  definitions  of  ''life,"  "lib- 
erty," "property"  and  "due  process  of  law."  They 
are  simple  and  comprehensive  in  themselves  and  have 
been  so  often  judicially  defined  that  there  can  be  no 
misunderstanding  as  to  their  meaning.  Process  of  law 
in  its  broad  sense  means  law  in  its  regular  course  of 
administration  through  courts  of  justice,  and  that  is 
but  another  way  of  saying  that  every  man's  right  to 
life,  liberty  and  property  is  to  be  disposed  of  in  accord- 
ance w^ith  those  ancient  and  fundamental  principles 
which  v/ere  in  existence  when  our  constitutions  were 
adopted.     "Due  process  of  law  implies  the  right  of 


616    Bradbury's  workmen's  compensation  law 

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the  person  affected  thereby  to  be  present  before  the 
tribunal  which  pronounces  judgment  upon  the  ques- 
tion of  Hfe,  Uberty  or  property  in  its  most  comprehen- 
sive sense;  to  be  heard  by  testimony  or  otherwise,  and 
to  have  the  right  of  controverting  by  proof  every  ma- 
terial fact  which  bears  upon  the  question  of  right  in 
the  matter  involved.  If  any  question  of  fact  or  liability 
be  conclusively  presumed  against  him  this  is  not  due 
process  of  law."  Zeigler  v.  S.  &  N.  Ala.  R.  R.  Co., 
58  Ala.  594.  Liberty  has  been  authoritatively  defined 
as  ''the  right  of  one  to  use  his  faculties  in  all  lawful 
ways,  to  live  and  work  where  he  will,  to  earn  his  liveli- 
hood in  any  lawful  calling,  and  to  pursue  any  lawful 
trade  or  avocation  "  {Matter  of  Jacobs,  98  N.  Y.  98, 
106) ;  and  the  right  of  property  as  ''the  right  to  acquire, 
possess  and  enjoy  it  in  any  way  consistent  with  the 
equal  rights  of  others  and  the  just  exactions  and  de- 
mands of  the  State."  Bertholf  v.  O'Reilly,  74  N.  Y. 
509,  515.  The  several  industries  and  occupations 
enumerated  in  the  statute  before  us  are  concededly 
lawful  within  any  of  the  numerous  definitions  which 
might  be  referred  to,  and  have  always  been  so.  They 
are,  therefore,  under  the  constitutional  protection.  One 
of  the  inalienable  rights  of  every  citizen  is  to  hold  and 
enjoy  his  property  until  it  is  taken  from  him  by  due 
process  of  law.  When  our  constitutions  were  adopted 
it  was  the  law  of  the  land  that  no  man  who  was  without 
fault  or  negligence  could  be  held  liable  in  damages  for 
injuries  sustained  by  another.  That  is  still  the  law, 
except  as  to  the  employers  enumerated  in  the  new 
statute,  and  as  to  them  it  provides  that  they  shall  be 
liable  to  their  employes  for  personal  injury  by  accident 
to  any  workman  arising  out  of  and  in  the  course  of 


CONSTITUTIONAL   DECISIONS  617 

New  York 

the  employment  which  is  caused  in  whole  or  in  part, 
or  is  contributed  to,  by  a  necessary  risk  or  danger  of 
the  employment  or  one  inherent  in  the  nature  thereof, 
except  that  there  shall  be  no  liability  in  any  case  where 
the  injury  is  caused  in  whole  or  in  part  by  the  serious 
and  willful  misconduct  of  the  injured  workman.  It  is 
conceded  that  this  is  a  liability  unknown  to  the  common 
law  and  we  think  it  plainly  constitutes  a  deprivation 
of  liberty  and  property  under  the  Federal  and  state 
constitutions,  unless  its  imposition  can  be  justified 
under  the  police  power  which  will  be  discussed  under 
a  separate  head.  In  arriving  at  this  conclusion  we  do 
not  overlook  the  cogent  economic  and  sociological  argu- 
ments which  are  urged  in  support  of  the  statute.  There 
can  be  no  doubt  as  to  the  theory  of  this  law.  It  is 
based  upon  the  proposition  that  the  inherent  risks  of 
an  employment  should  in  justice  be  placed  upon  the 
shoulders  of  the  employer,  who  can  protect  himself 
against  loss  by  insurance  and  by  such  an  addition  to 
the  price  of  his  wares  as  to  cast  the  burden  ultimately 
upon  the  consumer;  that  indemnity  to  an  injured  em- 
ploye should  be  as  much  a  charge  upon  the  business  as 
the  cost  of  replacing  or  repairing  disabled  or  defective 
machinery,  appliances  or  tools;  that,  under  our  present 
system,  the  loss  falls  immediately  upon  the  employe 
who  is  almost  invariably  unable  to  bear  it,  and  ulti- 
mately upon  the  community  which  is  taxed  for  the 
support  of  the  indigent;  and  that  our  present  system 
is  uncertain,  unscientific  and  wasteful,  and  fosters  a 
spirit  of  antagonism  between  employer  and  employ^ 
which  it  is  to  the  interest  of  the  State  to  remove.  We 
have  already  admitted  the  strength  of  this  appeal  to 
a  recognized  and  widely  prevalent  sentiment,  but  we 


618    Bradbury's  workmen's  compensation  law 

New  York 

think  it  is  an  appeal  which  must  be  made  to  the  people 
and  not  to  the  courts.  The  right  of  property  rests  not 
upon  philosophical  or  scientific  speculations  nor  upon 
the  commendable  impulses  of  benevolence  or  charity, 
nor  yet  upon  the  dictates  of  natural  justice.  The  right 
has  its  foundation  in  the  fundamental  law.  That  can 
be  changed  by  the  people,  but  not  by  legislatures.  In 
a  government  like  ours  theories  of  public  good  or  ne- 
cessity are  often  so  plausible  or  sound  as  to  command 
popular  approval,  but  courts  are  not  permitted  to 
forget  that  the  law  is  the  only  chart  by  which  the  ship 
of  state  is  to  be  guided.  Law  as  used  in  this  sense  means 
the  basic  law  and  not  the  very  act  of  legislation  which 
deprives  the  citizen  of  his  rights,  privileges  or  property. 
Any  other  view  would  lead  to  the  absurdity  that  the 
constitutions  protect  only  those  rights  which  the  legis- 
latures do  not  take  away.  If  such  economic  and  socio- 
logic  arguments  as  are  here  advanced  in  support  of  this 
statute  can  be  allowed  to  subvert  the  fundamental 
idea  of  property,  then  there  is  no  private  right  entirely 
safe,  because  there  is  no  limitation  upon  the  absolute 
discretion  of  legislatures,  and  the  guarantees  of  the 
Constitution  are  a  mere  waste  of  words.  Wynehamer  v. 
People,  13  N.  Y.  378;  Taylor  v.  Porter,  4  Hill,  140,  145; 
Norman  v.  Heist,  5  Watts  &  Serg.  171 ;  Hoke  v.  Hender- 
son, 4  Dev.  15.  As  stated  by  Judge  Comstock  in  the 
case  of  Wynehamer  v.  People,  ''These  constitutional 
safeguards,  in  all  cases,  require  a  judicial  investigation, 
pot  to  be  governed  by  a  law  specially  enacted  to  take 
away  and  destroy  existing  rights,  but  confined  to  the 
question  whether,  under  the  pre-existing  rule  of  con- 
duct, the  right  in  controversy  has  been  lawfully  ac- 
quired and  is  lawfully  possessed"   (p.  395).     If  the 


CONSTITUTIONAL   DECISIONS  619 

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argument  in  support  of  this  statute  is  sound  we  do  not 
see  why  it  cannot  logically  be  carried  much  further. 
Poverty  and  misfortune  from  every  cause  are  detri- 
mental to  the  State.  It  would  probably  conduce  to 
the  welfare  of  all  concerned  if  there  could  be  a  more 
equal  distribution  of  wealth.  Many  persons  have  much 
more  property  than  they  can  use  to  advantage  and 
many  more  find  it  impossible  to  get  the  means  for  a 
comfortable  existence.  If  the  legislature  can  say  to  an 
employer,  ''You  must  compensate  your  employ^  for 
an  injury  not  caused  by  you  or  by  your  fault,"  why 
can  it  not  go  further  and  say  to  the  man  of  wealth, 
"You  have  more  property  than  you  need  and  your 
neighbor  is  so  poor  that  he  can  barely  subsist;  in  the 
interest  of  natural  justice  you  must  divide  with  your 
neighbor  so  that  he  and  his  dependents  shall  not  be- 
come a  charge  upon  the  State?"  The  argument  that 
the  risk  to  an  employe  should  be  borne  by  the  employer 
because  it  is  inherent  in  the  employment,  may  be 
economically  sound,  but  it  is  at  war  with  the  legal 
principle  that  no  employer  can  be  compelled  to  assume 
a  risk  which  is  inseparable  from  the  work  of  the  em- 
ploy6,  and  which  may  exist  in  spite  of  a  degree  of  care 
by  the  employer  far  greater  than  may  be  exacted  by 
the  most  drastic  law.  If  it  is  competent  to  impose  upon 
an  employer,  who  has  omitted  no  legal  duty  and  has 
committed  no  wrong,  a  liability  based  solely  upon  a 
legislative  fiat  that  his  business  is  inherently  danger- 
ous, it  is  equally  competent  to  visit  upon  him  a  special 
tax  for  the  support  of  hospitals  and  other  charitable 
institutions,  upon  the  theory  that  they  are  devoted 
largely  to  the  alleviation  of  ills  primarily  due  to  his 
business.    In  its  final  and  simple  analysis  that  is  taking 


620    Bradbury's  workmen's  compensation  law 

New  York 

the  property  of  A  and  giving  it  to  B,  and  that  cannot  be 
done  under  our  constitutions.  Practical  and  simple  il- 
lustrations of  the  extent  to  which  this  theory  of  liability 
might  be  carried  could  be  multiplied  ad  infinitum,  and 
many  will  readily  occur  to  the  thoughtful  reader.  There 
is,  of  course,  in  this  country  no  direct  legal  authority 
upon  the  subject  of  the  liability  sought  to  be  imposed 
by  this  statute,  for  the  theory  is  not  merely  new  in  our 
system  of  jurisprudence,  but  plainly  antagonistic  to 
its  basic  idea.  The  English  authorities  are  of  no  assist- 
ance to  us,  because  in  the  king's  courts  the  decrees  of 
the  Parliament  are  the  supreme  law  of  the  land,  al- 
though they  are  interesting  in  their  disclosures  of  the 
paternalism  which  logically  results  from  a  universal 
employers'  liability  based  solely  upon  the  relation  of 
employer  and  employe,  and  not  upon  fault  in  the  em- 
ployer. There  are  a  few  American  cases,  however,  which 
clearly  state  the  legal  principle  which,  we  think,  is 
applicable  to  the  case  at  bar,  and  with  a  brief  reference 
to  them  we  shall  close  this  branch  of  the  discussion. 
In  the  Nitroglycerin  case  {Parrot  v.  Wells,  Fargo  &  Co., 
15  Wall.  524)  the  plaintiff,  who  was  the  common  land- 
lord of  the  defendants  and  other  tenants,  sought  to  hold 
the  defendants  liable  for  damages  occasioned  to  the 
premises  occupied  by  the  other  tenants,  by  an  ex- 
plosion of  nitroglycerin  which  had  been  delivered  to  the 
defendants  as  common  carriers  for  shipment.  It  ap- 
peared that  the  defendants  were  innocently  ignorant 
of  the  contents  of  the  packages  containing  the  danger- 
ous explosives,  and  that  they  were  guilty  of  no  negli- 
gence in  receiving  or  handling  them.  Upon  these  facts 
the  Federal  Supreme  Court  held  that  it  was  a  case  of 
unavoidable  accident  for  which  no  one  was  legally  re- 


CONSTITUTIONAL   DECISIONS  621 

New  York 

sponsible.  In  Ohio  &  Mississippi  Ry.  Co.  v.  Lackey, 
78  111.  55,  the  question  was  whether  the  railroad  com- 
pany was  liable  under  a  statute  which  provided  that 
"every  railroad  company  running  cars  within  this  State 
shall  be  liable  for  all  the  expense  of  the  coroner  and 
his  inquest,  and  the  burial  of  all  persons  who  may 
die  on  the  cars,  or  who  may  be  killed  by  collision,  or 
other  accident  occurring  to  such  cars,  or  otherwise." 
In  speaking  of  the  effect  of  that  section  of  the  law 
Mr.  Justice  Breese  observed:  "An  examination  of  the 
section  will  show  that  no  default,  or  negligence  of  any 
kind,  need  be  established  against  the  railroad  company, 
but  they  are  mulcted  in  heavy  charges  if,  notwithstand- 
ing all  their  care  and  caution,  a  death  should  occur  on 
one  of  their  cars,  no  matter  how  caused,  even  if  by  the 
party's  own  hand.  Running  of  trains  by  these  corpora- 
tions is  lawful  and  of  great  public  benefit.  It  is  not 
claimed  that  the  liability  attaches  for  the  violation  of 
any  law,  the  omission  of  any  duty  or  the  want  of  proper 
care  or  skill  in  running  their  trains.  The  penalty  is 
not  aimed  at  anything  of  this  kind.  We  say  penalty, 
for  it  is  in  the  nature  of  a  penalty,  and  there  is  a  con- 
stitutional inhibition  against  imposing  penalties  where 
no  law  has  been  violated  or  duty  neglected.  Neither 
is  pretended  in  this  case,  nor  are  they  in  the  contempla- 
tion of  the  statute.  A  passenger  on  a  train  dies  from 
sickness.  He  is  a  man  of  wealth.  Why  should  his 
burial  expenses  be  charged  to  the  railroad  company? 
There  is  neither  reason  nor  justice  in  it;  and  if  he  be 
poor,  having  not  the  means  for  a  decent  burial,  the 
general  law  makes  ample  provision  for  such  cases." 
To  the  same  effect  are  the  numerous  cases  arising 
under  statutes  passed  by  different  States  imposing  upon 


622    Bradbury's  workmen's  compensation  law 

New  York 

railroad  corporations  absolute  liability  for  killing  or 
injuring  upon  their  rights  of  way  horses,  cattle,  etc., 
by  running  over  them,  in  which  this  liability  was  held 
to  constitute  a  deprivation  of  property  without  due 
process  of  law.  Jensen  v.  Union  Pacific  Ry.  Co.,  6 
Utah,  253;  Ziegler  v.  South  &  North  Alabama  Ry.  Co., 
58  Ala.  594;  Birmingham  Ry.  Co.  v.  Parsons,  100  Ala. 
662;  Bielingbery  v.  Montana  Union  Ry.  Co.,  8  Mont. 
271;  Schenk  v.  Union  Pacific  Ry.  Co.,  5  Wyo.  430;  Cot- 
trell  V.  Union  Pacific  Ry.  Co.,  2  Wyo.  540. 

A  different  interpretation  has  been  given  to  statutes 
imposing  upon  railroad  corporations  the  duty  to  fence 
their  rights  of  way,  under  which  the  liability  is  imposed 
for  failure  to  obey  the  command  of  the  statutes.  Quack- 
enbush  v.  Wis.  &  M.  R.  R.  Co.,  62  Wis.  411;  Missouri 
Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512;  Minneapolis  & 
St.  L.  Ry.  Co.  V.  Beckwith,  129  U.  S.  26.  ''But  even 
such  statutes,"  says  Black  in  his  work  on  Constitu- 
tional Law  (2d  ed.,  p.  351),  "cannot  go  beyond  the  im- 
position of  such  a  penalty  in  cases  where  the  fault  lies 
at  the  door  of  the  company.  If  the  law  attempts  to 
make  such  companies  liable  for  accidents  which  were 
not  caused  by  their  negligence  or  disobedience  of  the 
law,  but  by  the  negligence  of  others  or  by  uncontrollable 
causes,  or  does  not  give  the  company  an  opportunity 
to  show  these  facts  in  its  own  defense,  it  is  void." 

We  conclude,  therefore,  that  in  its  basic  and  vital 
features  the  right  given  to  the  employe  by  this  statute, 
does  not  preserve  to  the  employer  the  ''due  process" 
of  law  guaranteed  by  the  constitutions,  for  it  authorizes 
the  taking  of  the  employer's  property  without  his  con- 
sent and  without  his  fault.  So  far  as  tlie  statute  merely 
creates  a  new  remedy  in  addition  to  those  which  existed 


CONSTITUTIONAL   DECISIONS  623 

New  York 

before  it  is  not  invalid.  The  State  has  complete  control 
over  the  remedies  which  it  offers  to  suitors  in  its  courts 
even  to  the  point  of  making  them  applicable  to  rights 
or  equities  already  in  existence.  It  may  change  the 
common  law  and  the  statutes  so  as  to  create  duties  and 
Uabihties  which  never  existed  before.  It  is  true,  as 
stated  by  Mr.  Justice  Brown  in  H olden  v.  Hardy,  169 
U.  S.  366,  385,  386,  that  "the  law  is,  to  a  certain  extent, 
a  progressive  science;  that  in  some  of  the  States  methods 
of  procedure,  which  at  the  time  the  Constitution  was 
adopted  were  deemed  essential  to  the  protection  and 
safety  of  the  people,  or  to  the  Uberty  of  the  citizen, 
have  been  found  to  be  no  longer  necessary;  that  re- 
strictions which  had  formerly  been  laid  upon  the  con- 
duct of  individuals,  or  of  classes  of  individuals,  had 
proved  detrimental  to  their  interests;  while,  upon  the 
other  hand,  certain  other  classes  of  persons,  particularly 
those  engaged  in  dangerous  or  unhealthful  employ- 
ments, have  been  found  to  be  in  need  of  additional 
protection.  Even  before  the  adoption  of  the  Consti- 
tution, much  had  been  done  toward  mitigating  the 
severity  of  the  common  law,  particularly  in  the  ad- 
ministration of  its  criminal  branch.  *  *  *  The  present 
century  has  originated  legal  reforms  of  no  less  impor- 
tance. The  whole  fabric  of  special  pleading,  once 
thought  to  be  necessary  to  the  illumination  of  the  real 
issue  between  the  parties,  has  crumbled  to  pieces.  The 
ancient  tenures  of  real  estate  have  been  largely  swept 
away,  and  land  is  now  transferred  almost  as  easily  and 
cheaply  as  personal  property.  Married  women  have 
been  emancipated  from  the  control  of  their  husbands 
and  placed  upon  a  practical  equality  with  them  with 
respect  to  the  acquisition,  possession  and  transmission 


624    Bradbury's  workmen's  compensation  law 

New  York 

of  property.  Imprisonment  for  debt  has  been  abolished. 
Exemptions  from  execution  have  been  largely  added  to, 
and  in  most  of  the  States  homesteads  are  rendered 
incapable  of  seizure  and  sale  upon  forced  process.  Wit- 
nesses are  no  longer  incompetent  by  reason  of  interest, 
even  though  they  be  parties  to  the  litigation.  Indict- 
ments have  been  simplified,  and  an  indictment  for  the 
most  serious  of  crimes  is  now  the  simplest  of  all.  In 
several  of  the  States  grand  juries,  formerly  the  only 
safeguard  against  a  malicious  prosecution,  have  been 
largely  abolished,  and  in  others  the  rule  of  unanimity, 
so  far  as  applied  to  civil  cases,  has  given  way  to  verdicts 
rendered  by  a  three-fourths  majority."  The  power  of 
the  State  to  make  such  changes  in  methods  of  procedure 
and  in  substantive  law  is  clearly  recognized.  Hurtado 
V.  California,  110  U.  S.  516;  Hayes  v.  Missouri,  120 
U.  S.  68;  Missouri  Pac.  Railway  Co.  v.  Mackey,  127 
U.  S.  205;  Hallinger  v.  Davis,  146  U.  S.  314;  Matter  of 
Kemmler,  136  U.  S.  436;  Duncan  v.  Missouri,  152  U.  S. 
377.  We  repeat,  however,  that  this  power  must  be 
exercised  within  the  constitutional  limitations  which 
prescribe  the  law  of  the  land.  "Due  process  of  law" 
is  process  due  according  to  the  law  of  the  land,  and  the 
phrase  as  used  in  the  Fourteenth  Amendment  of  the 
Federal  Constitution  with  reference  to  the  power  of 
the  States  means  the  general  law  of  the  several  States 
as  fixed  or  guaranteed  by  their  constitutions.  As  stated 
by  Mr.  Webster,  in  the  Dartmouth  College  case,  ''The 
law  of  the  land  is  the  general  law;  the  law  which  hears 
before  it  condemns,  which  proceeds  upon  inquiry  and 
renders  judgment  only  after  trial." 

If  we  are  warranted  in  concluding  that  the  new  stat- 
ute violates  private  right  by  taking  the  property  of  one 


CONSTITUTIONAL   DECISIONS  625 

New  York 

and  giving  it  to  another  without  due  process  of  law, 
that  is  really  the  end  of  this  case.  But  the  auspices 
under  which  this  legislation  was  enacted,  no  less  than 
its  intrinsic  importance,  entitle  its  advocates  to  the 
fullest  consideration  of  every  axgument  in  its  support, 
and  we,  therefore,  take  up  the  discussion  of  the  police 
power  under  which  this  law  is  sought  to  be  justified. 
The  poUce  power  is,  of  course,  one  of  the  necessary 
attributes  of  civilized  government.  In  its  most  com- 
prehensive sense  it  embraces  the  whole  system  by  which 
the  State  seeks  to  preserve  the  public  order,  to  prevent 
offenses  against  the  law,  to  insure  to  citizens  in  their 
intercourse  with  each  other  the  enjoyment  of  their  own 
so  far  as  is  reasonably  consistent  with  a  like  enjoy- 
ment of  rights  by  others.  Under  it  persons  and  prop- 
erty are  subjected  to  all  kinds  of  restraints  and  burdens 
in  order  to  secure  the  general  comfort,  health  and  pros- 
perity of  the  State.  But  it  is  a  power  which  is  always 
subject  to  the  Constitution,  for  in  a  constitutional 
government  limitation  is  the  abiding  principle,  ex- 
hibited in  its  highest  form  in  the  Constitution  as  the 
dehberative  judgment  of  the  people,  which  moderates 
every  claim  of  right  and  controls  every  use  of  power. 
In  the  language  of  Chief  Justice  Shaw,  in  Common- 
wealth V.  Alger,  7  Cush.  85:  ''It  is  much  easier  to  per- 
ceive and  realize  the  existence  and  sources  of  this  power 
than  to  mark  its  boundaries  or  prescribe  limits  to  its 
exercise."  It  covers  a  multitude  of  things,  that  are  de- 
signed to  protect  life,  limb,  health,  comfort,  peace  and 
property  according  to  the  maxim  sic  utere  tuo  ut  alienum 
non  Icedas,  but  its  exercise  is  justified  only  when  it 
appears  that  the  interests  of  the  public  generally,  as 
distinguished  from  those  of  a  particular  class,  require 
40 


626    Bradbury's  workmen's  compensation  law 

New  York 

it,  and  when  the  means  used  are  reasonably  necessary 
for  the  accomplishment  of  the  desired  end,  and  are 
not  unduly  oppressive.  Lawton  v.  Steele,  152  U.  S.  133, 
137;  Colon  v.  Lisk,  153  N.  Y.  188,  196;  Wright  v.  Hart, 
182  N.  Y.  330.  In  order  to  sustain  legislation  under 
the  police  power  the  courts  must  be  able  to  see  that 
its  operation  tends  in  some  degree  to  prevent  some 
offense  or  evil,  or  to  preserve  public  health,  morals, 
safety  and  welfare.  If  it  discloses  no  such  purpose, 
but  is  clearly  calculated  to  invade  the  liberty  and  prop- 
erty of  private  citizens,  it  is  plainly  the  duty  of  the 
courts  to  declare  it  invalid,  for  legislative  assumption 
of  the  right  to  direct  the  channel  into  which  the  private 
energies  of  the  citizen  may  flow,  or  legislative  attempt 
to  abridge  or  hamper  the  right  of  the  citizen  to  pursue, 
unmolested  and  without  unreasonable  regulation,  any 
lawful  calling  or  avocation  which  he  may  choose,  has 
always  been  condemned  under  our  form  of  government. 
Concrete  illustrations  of  what  may  and  what  may  not 
be  done  under  the  police  power  are  to  be  found  in  this 
very  Labor  Law  of  which  the  new  statute  is  a  part. 
As  this  statute  stood  before  article  14a  was  added,  it 
regulated  electric  work,  the  operation  of  elevators, 
work  on  scaffolds,  work  with  explosives  and  compressed 
air,  the  construction  of  tunnels  and  railroad  work.  It 
regulated  the  hours  of  work  in  certain  employments; 
it  directed  the  payment  of  wages  in  cash  at  specified 
periods;  it  provided  for  the  protection  of  employes 
engaged  in  the  erection  of  buildings;  it  compelled  the 
employer  to  guard  dangerous  and  exposed  machinery 
and  to  construct  fire  escapes  and  ventilating  appliances; 
it  required  him  to  provide  toilet  facilities,  pure  drinking 
water  and  sanitary  arrangements  and  prohibited  the 


CONSTITUTIONAL   DECISIONS  627 

New  York 

employment  of  women,  and  of  children  under  certain 
ages,  in  specified  occupations;  it  regulated  the  hours 
of  labor  of  minors;  it  modified  the  fellow-servant  rule, 
the  law  of  contributory  negligence  and  the  assumption 
of  risks;  and,  in  short,  it  imposed  upon  the  employer 
many  restrictions  and  duties  which  were  unknown  to 
the  common  law.  Broadly  classified,  all  these  and 
similar  statutory  provisions  which  are  designed,  in  one 
way  or  another,  to  conserve  the  health,  safety  or  morals 
of  the  employes  and  to  increase  the  duties  and  respon- 
sibihties  of  the  employer,  are  rules  of  conduct  which 
properly  fall  wdthin  the  sphere  of  the  police  power. 
Holden  v.  Hardy,  169  U.  S.  366;  Missouri  Pac.  Ry.  Co.  v. 
Mackey,  127  U.  S.  205.  But  the  new  addition  to  the 
Labor  Law  is  of  quite  a  different  character.  It  does 
nothing  to  conserve  the  health,  safety  or  morals  of  the 
employes,  and  it  imposes  upon  the  employer  no  new  or 
affirmative  duties  or  responsibilities  in  the  conduct  of 
his  business.  Its  sole  purpose  is  to  make  him  Uable 
for  injuries  which  may  be  sustained  wholly  without 
his  fault,  and  solely  through  the  fault  of  the  employ^, 
except  where  the  latter  fault  is  such  as  to  constitute 
serious  and  willful  misconduct.  Under  this  law,  the 
most  thoughtful  and  careful  employer,  who  has  neg- 
lected no  duty,  and  whose  workshop  is  equipped  with 
every  possible  appUance  that  may  make  for  the  safety, 
health  and  morals  of  his  employes,  is  liable  in  damages 
to  any  employe  who  happens  to  sustain  injury  through 
an  accident  which  no  human  being  can  foresee  or  pre- 
vent, or  which,  if  preventable  at  all,  can  only  be  pre- 
vented by  the  reasonable  care  of  the  employ^  himself. 
That  this  is  the  unmistakable  theory  and  purpose  of 
the  act  is  made  perfectly  plain  by  the  recital  in  §  215, 


628    Bradbury's  workmen's  compensation  law 

New  York 

which  sets  forth  that  from  the  nature,  conditions  or 
means  of  prosecution  of  the  work  in  the  employments 
which  are  classified  as  dangerous,  "extraordinary  risks 
to  the  life  and  limb  of  workmen  engaged  therein  are 
inherent,  necessary  or  substantially  unavoidable,  and 
as  to  each  of  which  emploj^ments  it  is  deemed  necessary 
to  establish  a  new  system  of  compensation  for  accidents 
to  workmen."  And  to  make  the  matter  still  more 
plain,  the  learned  counsel  for  the  commission  argues 
in  his  brief  that  "if  it  is  competent  for  the  legislature 
to  say  to  the  employer  in  a  dangerous  trade,  'use  the 
utmost  care  in  giving  your  workmen  safe  work,  so 
that  no  act  of  yours,  or  implement  of  yours,  or  work 
that  you  set  them  to  do  shall  hurt  them,  and  if  you  fail 
you  shall  be  liable  in  damages,'  if  it  is  competent  to 
make  such  a  law,  then  it  is  equally  competent  to  say 
as  in  this  new  act  directly,  'you  shall  be  responsible 
for  all  damages  caused  by  unsafe  condition  of  work,' 
and  that  is  just  what  the  liability  for  trade  risks  under 
the  new  act  means."  In  this  argument  the  learned 
counsel  ignores,  or  at  least  misses,  as  we  think,  the  vital 
distinction  between  legislation  which  imposes  upon  an 
employer  a  legal  duty,  for  the  failure  to  perform  which 
he  may  be  penalized  or  rendered  liable  in  damages, 
and  legislation  which  makes  him  liable  notwithstanding 
he  has  faithfully  observed  every  duty  imposed  upon 
him  by  law.  At  pages  46  and  47  of  the  report  of  the 
commissioners  are  quoted  the  several  pertinent  provi- 
sions of  our  state  constitution.  Article  1,  §  18;  article  1, 
§2;  article  1,  §  1;  article  1,  §6.  With  reference  to 
these,  the  commissioners  say:  "It  is  obvious,  on  a  mere 
reading,  that  the  first  section  makes  it  impossible  for 
the  legislature  to  enact  any  law  which  will  take  away 


CONSTITUTIONAL   DECISIONS  629 

New  York 

from  the  representatives  of  an  injured  workman  the 
right  of  action  there  named  for  injuries  causing  death, 
nor  can  the  legislature  limit  it  in  any  way.  It  is  equally 
obvious,  it  seems  to  us,  that  it  was  the  intention  of 
the  second  section  of  the  Constitution  (article  1,  §  2), 
to  provide  that  in  all  controversies  in  the  courts  of 
law  either  side  should  finally  have  a  right  to  a  jury  trial 
on  the  question  of  liability,  and  however  successful  or 
unsuccessful  jury  trials  may  be  in  cases  of  employers' 
liability,  or  in  other  cases,  that  solemn  mandate  of  the 
Constitution  cannot  be  set  aside.  The  third  and  fourth 
sections  of  the  Constitution  above  quoted  are  practically 
those  which,  like  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  provide  for  due  process  of  law 
in  all  legislation,  that  is,  speaking  generally,  which 
prohibit  the  passage  by  the  legislature  of  such  legisla- 
tion as  shall  arbitrarily  deprive  any  of  the  citizens  of 
the  State  of  life,  liberty  or  property." 

These  are  interesting  and  salient  admissions,  but  the 
ease  with  which  these  constitutional  provisions  are 
brushed  aside  is  startling.  Continuing,  the  commis- 
sioners say:  "But  we  regard  it  as  settled  that  the  legis- 
lature has  power,  if  it  so  chooses,  to  change  or  abrogate 
the  common  law  on  employers'  liability,  or  the  Em- 
ployers' Liability  Act,  or  any  other  statutes  in  regard 
thereto.  *  *  *  The  legislature  of  this  State,  in  the 
exercise  of  its  general  powers,  *  *  *  has  in  the  past 
so  legislated  as  to  prescribe  that  employers  in  New  York 
industries,  shall  conduct  their  business,  use  their  ma- 
chines and  use  their  property  in  such  ways  as  shall 
conduce  to  the  safety  of  the  employes  and  the  preven- 
tion of  accident  and  disease.  Such  is  the  whole  purpose 
of  the  Labor  Law.  *  *  *     We  are  of  opinion  that  it  is 


630    Bradbury's  workmen's  compensation  law 

New  York 

competent  for  the  legislature  to  take  a  further  step  and 
provide  conditions  of  the  carrying  on  of  such  dangerous 
industries — not  at  the  moment  conditions  as  to  the 
method  of  carrying  them  on — but  conditions  providing 
that  any  man  in  the  State  who  carries  on  such  dangerous 
trades  shall  be  liable  to  make  compensation  to  the 
employes  injured  either  by  the  fault  of  the  employer, 
or  by  those  unavoidable  risks  of  the  employment.  The 
effect  of  such  a  statute  would  be  to  reverse  the  com- 
mon law  doctrine  that  the  employ^  assumes  the  risk 
of  his  employment." 

With  all  due  respect  to  the  members  of  the  commis- 
sion we  beg  to  observe  that  the  statute  enacted  in 
conformity  with  their  recommendations,  does  not  stop 
at  reversing  the  common  law;  it  attempts  to  reverse 
the  very  provisions  of  the  Constitution  which,  the 
commissioners  admit,  are  obviously  beyond  the  reach 
of  the  legislature.  We  cannot  understand  by  what 
power  the  legislature  can  take  away  from  the  employer 
a  constitutional  guaranty  of  which  the  employ^  may 
not  also  be  deprived.  If  it  is  beyond  the  power  of  the 
legislature  to  take  from  the  representatives  of  deceased 
employes  their  rights  of  action  under  the  Constitution, 
by  what  measure  of  power  or  justice  may  the  legislature 
assume  to  take  from  the  employer  the  right  to  have  his 
liability  determined  in  an  action  at  law?  Conceding, 
as  we  do,  that  it  is  within  the  range  of  proper  legislative 
action  to  give  a  workman  two  remedies  for  a  wrong 
when  he  had  but  one  before,  we  ask,  by  what  stretch 
of  the  police  power  is  the  legislature  authorized  to  give 
a  remedy  for  no  wrong?  If,  before  the  passage  of  this 
law,  the  employer  had  a  right  to  a  jury  trial  upon  the 
question  of  liabihty,  where  and  how  did  he  lose  it? 


CONSTITUTIONAL  DECISIONS  631 

New  York 

Can  it  be  taken  from  him  by  the  mere  assertion  that 
this  statute  onl}'-  reverses  the  common-law  doctrine 
that  the  employe  assumes  the  risk  of  his  employ- 
ment? It  would  be  quite  as  logical  and  effective  to 
argue  that  this  legislation  only  reverses  the  laws  of 
nature,  for  in  everything  within  the  sphere  of  human 
activity  the  risks  which  are  inherent  and  unavoidable 
must  fall  upon  those  who  are  exposed  to  them.  We 
must  admit  that  what  the  legislature  may  prohibit  it 
may  absolutely  control.  Where  the  right  to  exist,  as 
in  case  of  corporations,  depends  upon  the  will  of  the 
legislature,  that  right  may  be  granted  subject  to  pre- 
scribed conditions.  In  such  a  case  an  employer  may 
be  made  an  insurer  of  the  safety  of  his  employes  as  a 
condition  of  the  permission  to  engage  in  business.  But 
when  an  industry  or  calling  is  per  se  lawful  and  open 
to  all,  and,  therefore,  beyond  the  prohibitive  power 
of  the  legislature,  the  right  of  governmental  control 
must  be  confined  to  such  reasonable  enactments  as 
are  directly  designed  to  conserve  health,  safety,  com- 
fort, morals,  peace  and  order.  Lochner  v.  New  York, 
198  U.  S.  45.  For  the  failure  of  an  employer  to  observe 
such  regulations  the  legislature  may  unquestionably 
enact  direct  penalties  or  create  presumptions  of  fault 
which,  if  not  rebutted  by  proof,  may  be  regarded  as 
sufficient  evidence  of  liability  for  damages.  That  must 
be  the  extreme  limit  of  the  police  power,  for  just  beyond 
is  the  Constitution  which,  in  substance  and  effect, 
forbids  that  a  citizen  shall  be  penalized  or  subjected 
to  liability  unless  he  has  violated  some  law  or  has  been 
guilty  of  some  fault. 

The  limitations  of  the  police  power  are  illustrated 
in  a  great  variety  of  cases.     In  Matter  of  Jacobs,  98 


632    Bradbury's  workmen's  compensation  law 

New  York 

N.  Y.  98,  99,  it  was  held  that  an  act  was  void  which 
made  it  a  misdemeanor  to  manufacture  cigars  or  pre- 
pare tobacco  in  certain  tenements.  In  People  v.  Marx, 
99  N.  Y.  377,  this  court  condemned  an  act  absolutely 
prohibiting  the  manufacture  or  sale  of  oleomargarine, 
upon  the  ground  that  it  interfered  with  a  lawful  in- 
dustry, not  injurious  to  the  public  and  not  fraudulently 
conducted,  although  in  a  later  case  {People  v.  Arens- 
berg,  105  N.  Y.  123),  another  statute  relating  to  the  same 
subject  was  upheld  because  it  was  directly  aimed  at 
a  designed  and  intentional  imitation  of  dairy  butter. 
In  People  v.  Gillson,  109  N.  Y.  389,  404,  it  was  held 
that  a  statute  was  not  within  the  police  power  which 
prohibited  the  sale  or  disposal  of  any  article  of  food  upon 
any  representation  or  inducement  that  anything  else 
will  be  delivered  as  a  gift,  prize,  premium  or  reward 
to  the  purchaser.  The  ground  of  the  decision  was 
that  it  was  not  a  health  law;  that  it  was  not  designed 
to  prevent  the  adulteration  of  food,  and  that  it  was 
not  in  the  power  of  the  legislature  to  convert  an  inno- 
cent act  into  a  crime.  In  Colon  v.  Lisk,  153  N.  Y.  188, 
the  statute  under  consideration  provided  for  the  sum- 
mary seizure  of  any  boat  or  vessel,  used  by  one  person 
in  interfering  with  the  oysters  or  shell  fish  of  another, 
and  for  its  forfeiture  and  sale.  It  was  held  that  the 
statute  sanctioned  an  unauthorized  confiscation  of  pri- 
vate property  for  the  mere  protection  of  private  rights 
and  was  not  within  the  police  power  of  the  State. 
In  People  v.  Hawkins,  157  N.  Y.  1,  this  court  decided 
that  a  statute  was  void  which  made  it  a  misdemeanor 
to  sell  or  expose  for  sale  any  goods  made  in  a  penal 
institution  unless  they  were  labeled  ''convict  made." 
In  People  v.  Orange  County  Road  Con,  Co.,  175  N.  Y.  84, 


CONSTITUTIONAL   DECISIONS  633 

New  York 

it  was  held  that  the  State  cannot  dictate  to  independent 
contractors  on  state  work  the  hours  of  labor  which  they 
shall  prescribe  for  their  emplo3^es,  where  there  was 
nothing  in  the  character  of  the  work  or  in  the  provisions 
of  the  contract  to  justify  legislative  interference.  In 
Beardsley  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  162  N.  Y.  230, 
what  is  known  as  the  "Mileage  Book  Act,"  which  re- 
quired railroad  companies  to  issue  mileage  books  and 
provided  a  penalty  for  refusal,  was  unconstitutional 
as  to  railroad  corporations  in  existence  at  the  time  of 
its  enactment,  because  it  was  an  illegal  invasion  of  the 
vested  property  rights  of  such  corporations.  In  Schnaier 
V.  Navarre  Hotel  &  I.  Co.,  182  N.  Y.  88,  the  court  pro- 
nounced invalid  a  statute  which  provided  that  it  should 
be  unlawful  for  a  copartnership  to  engage  in  the  busi- 
ness of  "employing"  or  master  plumber  unless  each 
and  every  member  thereof  shall  have  registered,  after 
examination  and  certification  by  an  examining  board 
of  plumbers.  In  People  v.  Marcus,  185  N.  Y.  257,  it 
was  held  that  a  section  of  the  Penal  Code  was  void 
which  provided,  in  substance,  that  no  person  shall 
make  the  employment  of  another,  or  the  continuance 
of  such  employment,  conditional  upon  the  employe's 
not  joining  or  becoming  a  member  of  a  labor  organiza- 
tion. In  People  v.  Williams,  189  N.  Y.  131,  134,  this 
court  condemned  that  part  of  the  Labor  Law  which 
prohibited  the  employment  of  an  adult  female  in  a 
factory  before  six  o'clock  in  the  morning  or  after  nine 
o'clock  in  the  evening,  and  held  that  it  was  not  a  proper 
exercise  of  the  police  power,  since  it  had  no  reference 
to  the  number  of  hours  of  labor  or  to  the  healthfulness 
of  the  employment. 

We  have  yet  to  consider  certain  special  cases  upon 


634    Bradbury's  workmen's  compensation  law 

New  York 

which  the  exponents  of  this  new  law  have  planted  their 
faith  and  hope,  and  these  run  along  such  divergent  lines 
as  to  indicate,  more  clearly  than  anything  else,  the 
absence  of  any  sound  legal  theory  upon  which  this 
legislation  can  be  sustained.  These  cases  are  cited  in 
support  of  the  contention  that  the  common  law  and 
our  statutes  furnish  many  illustrations  of  legal  liability 
without  fault,  but  we  shall  endeavor  by  analysis  to 
show  how  inapplicable  they  are  to  the  questions  now 
before  the  court.  The  case  of  Marvin  v.  Trout,  199 
U.  S.  212,  arose  under  an  Ohio  statute  which  subjected 
premises  used  for  gambling  to  a  lien  for  money  lost  in 
gambling.  The  statute  forbade  gambling,  and  the 
court  very  properly  argued  that:  ''The  power  of  the 
State  to  enact  laws  to  suppress  gambling,  cannot  be 
doubted,  and,  as  a  means  to  that  end,  we  have  no  doubt 
of  its  power  to  provide  that  the  owner  of  the  building 
in  which  gambling  is  conducted,  who  knowingly  looks 
on  and  permits  such  gambling,  can  be  made  liable  in 
his  property  which  is  thus  used,  to  pay  a  judgment 
against  those  who  won  the  rrioney,  as  is  provided  in 
the  statute.  *  *  *  The  liability  of  the  owner  of  the 
building  to  make  good  the  loss  sustained,  under  the 
circumstances  set  forth  in  the  statute,  was  clearly  part 
of  the  means  resorted  to  by  the  legislature  for  the  pur- 
pose of  suppressing  the  evil  in  the  interests  of  the  public 
morals  and  welfare"  (p.  224).  A  more  cogent  illustra- 
tion of  the  undoubted  application  of  the  police  power 
cannot  be  found.  In  the  interest  of  good  morals  it  is 
not  merely  the  right  but  the  duty  of  the  State  to  sup- 
press gambling,  and  the  case,  so  far  from  being  an 
authority  for  the  idea  of  liability  without  fault,  pro- 
ceeds directly  upon  the  theory  that  the  owner  was  at 


CONSTITUTIONAL   DECISIONS  635 

New  York 

fault  in  permitting  his  premises  to  be  used  for  an  illegal 
purpose.  Then  there  is  the  case  of  Bertholf  v.  O'Reilly, 
74  N.  Y.  509,  in  which  this  court  upheld  the  so-called 
"Civil  Damage  Act"  which  gave  to  every  husband, 
wife,  parent,  guardian,  employer  or  other  person  who 
should  be  injured  in  person  or  property  or  means  of 
support  by  any  intoxication  of  any  person,  a  right  of 
action  against  any  person  who  by  selling  or  giving  away 
intoxicating  liquors  caused  the  intoxication,  in  whole 
or  in  part,  and  subjecting  to  the  same  liability  any 
person  or  persons  owning  or  renting  or  permitting  the 
occupation  of  any  building  or  premises  with  knowledge 
that  intoxicating  liquors  were  to  be  sold  thereon.  In 
that  case,  as  in  the  case  of  Marvin  v.  Trout  (supra), 
the  controlling  principle  was  that  the  State  had  the 
right  to  prohibit  and,  therefore,  the  absolute  right  to 
control.  As  Judge  Andrews  pertinently  observed, 
''The  right  of  the  State  to  regulate  the  traffic  in  intoxi- 
cating liquors,  within  its  limits,  has  been  exercised  from 
the  foundation  of  the  government,  and  is  not  open  to 
question.  The  State  may  prescribe  the  persons  by 
whom  and  the  conditions  under  which  the  traffic  may 
be  carried  on.  It  may  impose  upon  those  who  act 
under  its  license  such  liabilities  and  penalties  as  in  its 
judgment  are  proper  to  secure  society  against  the  dan- 
gers of  the  traffic  and  individuals  against  injuries  com- 
mitted by  intoxicated  persons  under  the  influence  of 
or  resulting  from  their  intoxication"  (p.  517).  The 
defendant  in  that  case,  it  is  true,  was  not  the  Ucensee, 
but  he  had  rented  his  premises  for  the  traffic  in  intoxi- 
cating liquors  knowing  that  they  were  to  be  so  used. 
Upon  that  feature  of  the  case  Judge  Andrews  said: 
"The  liability  imposed  upon  the  landlord  for  the  acts 


636    Bradbury's  workmen's  compensation  law 

New  York 

of  the  tenant  is  not  a  new  principle  in  legislation.  His 
liability  only  arises  when  he  has  consented  that  the 
premises  may  be  used  as  a  place  for  the  sale  of  liquors. 
He  selects  the  tenant,  and  he  may,  without  violating 
any  constitutional  provision,  be  made  responsible  for 
the  tenant's  acts  connected  with  the  use  of  the  leased 
property"  (p.  525).  That  is  very  far  from  being  a  case 
of  liability  without  fault.  The  enactment  of  the  "Civil 
Damage  Act"  was  clearly  within  the  police  power,  and 
the  liability  imposed  did  not  deprive  either  the  tenant 
or  the  landlord  of  ''due  process  of  law,"  for  each  had 
the  right  to  his  day  in  court  and  an  opportunity  to  dis- 
prove the  facts  upon  which  the  statutory  right  of  ac- 
tion depended.  Let  us  suppose,  however,  that  the 
statute  had  gone  so  far  as  to  provide  that  the  mere  fact 
of  selling  liquor  by  the  tenant,  or  the  mere  fact  of  rent- 
ing the  premises  for  that  purpose  by  the  landlord, 
should  be  deemed  conclusive  proof  of  the  intoxication 
of  the  person  to  whom  the  liquor  was  sold,  and  of  the 
fact  that  the  person  bringing  the  suit  had  suffered  injury 
thereby,  so  that  the  person  sued  could  not  be  heard  to 
deny  or  disprove  his  responsibility  for  the  intoxication 
or  the  injuries  resulting  therefrom.  Would  that  be 
''due  process  of  law"?  Suppose  that  the  Ohio  statute, 
which  was  also  clearly  within  the  general  scope  of  the 
police  power,  had  imposed  upon  the  landlord  a  liability 
for  money  lost  in  gambling  on  his  premises  without 
his  knowledge  of  the  purpose  for  which  the  building  was 
used,  and  had  declared  that  evidence  of  the  mere  loss 
of  the  money  should  be  sufficient  to  sustain  a  judgment 
against  him.  That  would  clearly  be  a  case  of  liability 
without  fault;  but  what  court,  controlled  by  constitu- 
tional limitations,  would  render  such  a  judgment?    We 


CONSTITUTIONAL   DECISIONS  637 

New  York 

are  referred  to  the  case  of  Chicago,  Rock  Island  &  Pacific 
Railway  Co.  v.  Zernecke,  183  U.  S.  582,  as  an  illustration 
of  liability  without  fault.  We  think  that  case  has  no 
analogy  to  the  case  at  bar.  There  a  statute  of  Nebraska 
imposed  upon  railroad  corporations  a  liability  for  all 
injuries  to  passengers  except  when  occasioned  by  the 
criminal  negligence  of  the  person  injured,  or  when  the 
injury  was  sustained  in  the  violation  of  some  express 
rule  or  regulation  of  the  corporation.  The  point  de- 
cided in  that  case  was  that  this  rule  of  liability  was  a 
part  of  the  very  statute  under  which  the  corporation 
took  its  charter.  The  defendant  in  the  case  at  bar  is 
a  railroad  corporation,  and  as  such  may  be  subject  to 
state  regulations  which  would  not  apply  to  other  cor- 
porations or  to  individuals,  but  we  are  not  now  con- 
cerned with  that  question,  since  the  statute  before  us 
has  reference  to  employers  in  their  relations  with  their 
employes,  and  not  to  railroads  in  their  service  to  the 
public. 

In  support  of  this  new  statute  we  are  also  asked  to 
consider  the  supposed  analogies  of  the  law  of  deodands; 
the  common-law  liability  of  the  husband  for  the  torts 
of  his  wife;  the  liabiHty  of  the  master  for  the  acts  of 
his  servant,  and  the  liability  of  a  ship  for  the  care  and 
maintenance  of  sick  or  disabled  seamen.  From  the 
historical  point  of  view,  these  subjects  might  be  very 
entertainingly  elaborated,  but  for  the  practical  purposes 
of  this  discussion  they  may  be  very  briefly  disposed 
of.  If  the  law  of  deodands  was  ever  imported  into 
this  country  it  has  never,  to  our  knowledge,  found  ex- 
pression in  a  single  statute  or  judicial  decision.  It 
was  one  of  those  primitive  conceptions  of  justice  under 
which  a  chattel  which  caused  the  death  of  a  human 


638    bradbuky's  workmen's  compensation  law 

New  York 

being  was  forfeited  to  the  king.  We  are  unable  to  see 
what  bearing  it  can  have  upon  the  question  whether, 
under  our  constitutions,  it  is  due  process  of  law  to  render 
a  man  liable  for  damages  when  he  has  been  guilty  of 
no  fault.  Quite  as  farfetched  seems  the  argument  based 
upon  the  common-law  hability  of  the  husband  for  the 
torts  of  his  wife.  Under  the  common-law  unity  of 
husband  and  wife,  the  latter  was  presumed  to  act  under 
the  compulsion  of  the  former;  and  the  wife  could  never 
be  sued  alone.  As  the  marriage  vested  the  husband 
with  the  personal  property  of  the  wife,  it  was  simply 
logical  that  he  should  pay  her  obligations.  So  with  the 
liability  of  the  master  for  the  acts  of  his  servant,  the 
whole  theory  is  expressed  in  the  maxim  qui  facit  per 
alium  facit  per  se.  He  who  acts  through  another  acts 
himself.  How  do  these  illustrations  support  the  prin- 
ciple of  liability  without  fault?  Could  a  husband  or 
master  be  held  liable  under  the  common  law  when  the 
wife  or  servant  had  been  guilty  of  no  wrong?  Would 
the  common  law  have  denied  to  the  husband  or  master 
the  right  to  prove  that  no  tort  had  been  committed 
by  the  wife  or  servant?  The  admiralty  cases  of  The 
Osceola,  189  U.  S.  158;  The  City  of  Alexandria,  17  Fed. 
Rep.  399,  and  the  case  of  Scarff  v.  Metcalf,  107  N.  Y. 
211,  seem  to  us  equally  inapplicable  as  authorities  for 
the  proposition  that  the  law  recognizes  liability  with- 
out fault.  It  is  common  knowledge  that  the  contracts 
and  services  of  seamen  are  exceptional  in  character. 
A  seaman  engages  for  the  voyage.  He  is  subject  to 
physical  discipline,  and  exposed  to  hardships  and  dan- 
gers peculiar  to  the  sea.  He  is,  in  effect,  a  coadventurer 
with  the  master,  and  shares  in  the  risks  of  shipwreck 
and  capture,  often  losing  his  wages  by  casualties  which 


CONSTITUTIONAL   DECISIONS  639 

New  York 

do  not  affect  workmen  on  land.  For  these  and  many 
other  obvious  reasons  the  maritime  law  has  wisely  and 
benevolently  built  up  peculiar  rights  and  privileges 
for  the  protection  of  the  seaman  which  are  not  cogni- 
zable in  the  common  law.  When  he  is  sick  or  injured 
he  is  entitled  to  be  cared  for  at  the  expense  of  the  ship, 
and  for  the  failure  of  the  master  to  perform  his  duty 
in  this  regard,  the  ship  or  the  owner  is  liable.  That  is 
a  right  given  to  the-  seaman,  and  a  duty  enjoined  upon 
the  master,  by  the  plainest  dictates  of  justice,  which 
arises  out  of  the  necessities  of  the  case;  and,  because 
of  the  reason  of  the  rule,  the  right  and  duty  cease  when 
the  contract  has  terminated  and  the  seaman  has  been 
returned  to  the  port  of  shipment  or  discharge,  or  has 
been  furnished  with  means  to  do  so.  But  beyond  this 
duty  on  the  part  of  the  master  or  owner,  there  seems 
to  be  no  liability  whatever  for  injuries  sustained  by 
the  seaman  in  the  course  of  his  work.  We  think  it 
may  confidently  be  asserted  that  within  the  whole 
range  of  the  maritime  law  there  will  be  found  no  rule 
which  renders  master,  owner  or  ship  liable  in  damages 
for  an  injury  sustained  by  the  seaman  without  fault 
on  the  part  of  anyone,  or  without  any  fault  except  his 
own.  The  case  of  Scarff  v.  Metcalf,  107  N.  Y.  211,  was 
not  disposed  of  upon  any  such  theory,  but  was  based 
upon  the  neglect  of  the  master  to  perform  the  duty  of 
caring  for  the  injured  seaman  imposed  by  the  maritime 
law.  The  legal  status  of  seamen  is  clearly  illustrated 
in  the  case  of  Robertson  v.  Baldwin,  165  U.  S.  275,  where 
it  was  held  that  compulsory  personal  service  of  a  sea- 
man in  performance  of  his  contract  was  not  a  violation 
of  the  Thirteenth  Amendment  to  the  Federal  Consti- 
tution  forbidding   slavery   or   involuntary   servitude. 


640    Bradbury's  workmen's  compensation  law 

New  York 

In  that  case  the  learned  justice  who  wrote  for  the  court 
suggested  that  enforced  service  under  a  seaman's  con- 
tract was  not  involuntary  within  the  Constitution, 
although  the  contract  would  not  be  enforced  by  the 
courts.  But  in  the  later  case  of  Clyatt  v.  United  States, 
197  U.  S.  207,  it  was  held  that  peonage  or  enforced 
service,  whether  under  a  voluntary  contract  of  service 
or  not,  was  involuntary  servitude  and  forbidden  by 
the  Constitution  in  all  cases  save  .those  arising  out  of 
the  exceptional  relations  of  the  seaman  to  his  ship, 
the  child  to  its  parents  and  the  apprentice  to  his  mas- 
ter. In  the  review  in  Robertson  v.  Baldwin  (supra),  of 
the  various  decisions  in  admiralty,  it  is  made  quite 
clear  that  the  courts  have  always  regarded  seamen  as 
irresponsible  to  a  degree  which  makes  them  incapable 
of  fully  protecting  their  own  rights.  With  the  power 
given  to  the  employer  of  seamen  to  compel  specific  per- 
formance of  their  contracts,  there  are  imposed  certain 
obligations  unknown  to  any  other  relation.  It  is  a 
relation  which  rests  on  affirmative  law  and  not  on  nat- 
ural right.  We  can  find  no  analogy  between  a  case 
arising  out  of  such  a  relation  and  one  in  which  an  adult 
of  sound  mind  and  capable  of  freely  contracting  for 
himself  voluntarily  enters  upon  employment  from  which 
he  is  at  liberty  to  withdraw  whenever  he  will. 

Great  reliance  is  placed  upon  the  case  of  St.  Louis  & 
San  Francisco  Ry.  Co.  v.  Mathews,  165  U.  S.  1,  in  sup- 
port of  the  contention  that  there  may  be  liabihty  where 
there  is  no  delinquency.  That  was  an  action  brought 
by  an  owner  of  land  adjoining  the  defendant's  railroad 
to  recover  damages  for  the  destruction  of  his  dwelling 
house  and  other  buildings,  caused  by  fire  which  spread 
from  sparks  emitted  by  the  defendant's  locomotives. 


CONSTITUTIONAL   DECISIONS  641 

New  York 

The  action  was  brought  under  a  statute  of  the  State 
of  Missouri  which  provided  that  "each  railroad  cor- 
poration, owning  or  operating  a  raih-oad  in  this  State, 
shall  be  responsible  in  damages  to  every  person  and 
corporation  whose  property  may  be  injured  or  de- 
stroyed by  fire  communicated,  directly  or  indirectly,  by 
locomotive  engines  in  use  upon  the  railroad  owned  or 
operated  by  such  railroad  corporation;  and  each  such 
railroad  corporation  shall  have  an  insurable  interest 
in  the  property  upon  the  route  of  the  railroad  owned  or 
operated  by  it,  and  may  procure  insurance  thereon  in 
its  own  behalf,  for  its  protection  against  such  damages." 
The  statute  was  upheld  as  being  within  the  legislative 
power  of  the  State.  That  decision  is  amply  supported 
by  a  number  of  reasons  which  have  no  application  to  the 
controversy  at  bar.  To  begin  with,  the  constitution 
of  Missouri  contained  a  clause,  which  was  in  force  when 
the  railroad  company  obtained  its  charter,  providing 
that  "the  exercise  of  the  police  power  of  the  State  shall 
never  be  abridged,  or  so  construed  as  to  permit  cor- 
porations to  conduct  their  business  in  such  manner  as 
to  infringe  the  equal  rights  of  individuals,  or  the  general 
well-being  of  the  State."  Missouri  Const.,  article  12, 
§  5.  Another  ample  reason  is  found  in  the  fact  that 
railroads  alone  ''have  the  privilege  of  taking  a  narrow 
strip  of  land  from  each  owner,  without  his  consent, 
along  the  route  selected  for  the  track,  and  of  traversing 
the  same  at  all  hours  of  the  day  and  night,  and  at  all 
seasons  whether  wet  or  dry,  with  locomotive  engines 
that  scatter  fire  along  the  margin  of  the  land  not  taken, 
thereby  subjecting  all  combustible  property  to  extraor- 
dinary hazard  of  loss."  Grissell  v.  Housatonic  R.  R. 
Co.,  54  Conn.  447.  Then,  again,  "the  right  to  use  the 
41 


642    Bradbury's  workmen's  compensation  law 

New  York 

agencies  of  fire  and  steam  in  the  movement  of  railway 
trains  is  *  *  *  derived  from  the  legislation  of  the 
State,  and  it  certainly  cannot  be  denied  that  it  is  for 
the  State  to  determine  what  safeguards  must  be  used 
to  prevent  the  escape  of  fire,  and  to  define  the  extent 
of  the  liability  for  fires  resulting  from  the  operation 
of  trains  by  means  of  steam  locomotives.  This  is  a 
matter  within  state  control."  Hartford  F.  Ins.  Co.  v. 
Chi.,  Mil.  &  St.  Paul  Ry.  Co.,  62  Fed.  Rep.  904.  A 
legislature  may,  if  it  chooses,  make  it  a  condition  of 
the  right  to  run  carriages  propelled  by  the  agency  of 
fire,  that  the  corporation  employing  them  shall  be  re- 
sponsible for  all  injuries  which  fire  may  cause.  Inger- 
soll  V.  Stockbridge  &  Pittsficld  R.  R.  Co.,  8  Allen,  438; 
Grand  Trunk  Ry.  Co.  v.  Richardson,  9  U.  S.  454.  And, 
finally,  these  statutes  are  designed  to  protect  the  rights 
of  those  who  have  no  contractual  relations  to  the  cor- 
porations which  inflict  the  injury.  In  such  a  case, 
when  both  parties  are  equally  faultless,  the  legislature 
may  properly  consider  it  to  be  just  that  the  duty  of 
insuring  private  property  against  loss  or  injury  caused 
by  the  use  of  the  dangerous  instruments  should  rest 
upon  the  railroad  company,  which  employs  the  in- 
struments and  creates  the  peril  for  its  own  profit,  rather 
than  upon  the  owner  of  the  property  who  has  no  con- 
trol over  or  interest  in  these  instruments.  Quite  aside 
from  the  considerations  which  support  such  a  statutory 
liability  against  railroad  corporations,  it  may  be  added 
that  it  is  in  no  sense  an  extension  of  the  rule  of  the 
common  law  to  modern  conditions,  but  in  reality  a 
return  to  the  original  common-law  doctrine  under  which 
every  person  who  permitted  fire  started  by  him  to 
escape  beyond  his  house  or  close  was  liable  to  every 


CONSTITUTIONAL   DECISIONS  643 

New  York 

one  who  suffered  loss  or  injury  thereby.  The  severity 
of  that  early  English  rule  was  moderated  by  numerous 
statutes,  among  which  are  6  Anne  and  14  Geo.  III. 
As  to  these  two  last-mentioned  statutes  it  has  been 
held  that  they  became  by  adoption  a  part  of  the  common 
law  of  this  State  (Thompson's  Negligence,  vol.  1,  pp.  148 
et  seq.,  notes  under  ''Liability  for  Damages  by  Fire," 
and  Webb  v.  R.,  W.  &  0.  R.  R.  Co.,  49  N.  Y.  420,  426), 
under  which  neither  individuals  nor  corporations  are 
liable  for  escaping  fire  unless  there  is  negUgence.  Clark 
V.  Foot,  8  Johns.  421 ;  Bennett  v.  Scutt,  18  Barb.  347,  349; 
Stuart  V.  Hawley,  22  Barb.  619,  621 ;  Radclifs  Exrs.  v. 
Mayor,  etc.,  of  Brooklyn,  4  N.  Y.  195,  200;  Calkins  v. 
Barger,  44  Barb.  424;  Sheldon  v.  Hudson  R.  R.  R.  Co., 
14  N.  Y.  219;  Steinweg  v.  Erie  Ry.,  43  N.  Y.  123,  127. 
The  cited  cases  arising  out  of  injuries  inflicted  by  ani- 
mals of  known  dangerous  or  vicious  propensities,  and 
the  liability  which  has  often  been  imposed  for  the 
maintenance  of  private  nuisances,  we  shall  not  discuss, 
for  we  think  they  are  governed  by  well-settled  principles 
which  clearly  have  no  application  to  the  questions  now 
before  us. 

In  the  addenda  to  the  instructive  brief  of  the  counsel 
for  the  commission  our  attention  is  called  to  three  de- 
cisions of  the  Federal  Supreme  Court  which  have  been 
but  recently  decided  and  are  not  yet  officially  reported. 
Noble  State  Bank  v.  Haskell,  219  U.  S.  104;  Assaria 
State  Bank  v.  Dolley,  219  U.  S.  121,  and  Engel  v.  O'Mal- 
ley,  219  U.  S.  128.  These  cases,  it  is  contended,  strongly 
support  the  validity  of  the  legislation  which  we  are 
condemning  because,  as  counsel  asserts,  they  go  directly 
to  the  ultimate  question:  ''Is  the  act  an  unreasonable 
regulation  of  the  status  of  employment?"    We  have 


644    Bradbury's  workmen's  compensation  law 

New  York 

tried  to  make  it  clear  that  in  our  judgment  this  statute 
is  not  a  law  of  regulation.  It  contains  not  a  single 
provision  which  can  be  said  to  make  for  the  safety, 
health  or  morals  of  the  employes  therein  specified,  nor 
to  impose  upon  the  enumerated  employers  any  duty 
or  obligations  designed  to  have  that  effect.  It  does 
not  affect  the  status  of  employment  at  all,  but  writes 
into  the  contract  between  the  employer  and  employ^, 
without  the  consent  of  the  former,  a  liability  on  his 
part  which  never  existed  before  and  to  which  he  is 
permitted  to  interpose  practically  no  defense,  for  he 
can  only  escape  liabihty  when  the  employ^  is  injured 
through  his  own  willful  misconduct.  That  is  a  defense 
which  needs  no  legislative  sanction,  since  it  would  be 
abhorrent  to  the  most  primitive  notions  of  justice  to 
permit  one  to  impose  liability  for  his  willfully  self- 
inflicted  injuries  upon  another  who  is  wholly  free  from 
responsibility  for  them.  The  case  of  Engel  v.  O'Malley 
(supra)  is  so  clearly  distinguishable  from  the  case  at 
bar  that  we  need  only  state  the  facts  to  mark  the  con- 
trast. The  Engel  case  arose  under  a  New  York  statute 
which  provides  that  individuals  and  firms  shall  not 
engage  in  the  business  of  receiving  deposits  for  safe- 
keeping or  for  transmission,  or  for  any  other  purpose, 
or  in  the  business  of  banking,  without  first  obtaining 
from  the  state  comptroller  a  license.  The  same  statute 
further  provides  that  applicants  for  such  a  license  must 
pay  a  prescribed  fee,  give  bonds  and  submit  to  other 
restrictions.  We  have  already  passed  upon  the  con- 
stitutionality of  certain  parts  of  that  statute  (Laws  of 
1907,  Chapter  185)  in  Musco  v.  United  Surety  Co.,  196 
N.  Y.  459,  which  was  an  action  upon  a  bond  given 
under  it,  and  have  held  that  'Hhe  regulation  of  the  busi- 


CONSTITUTIONAL   DECISIONS  645 

New  York 

ness  of  receiving  deposits  is  plainly  within  the  power 
possessed  by  the  State  to  regulate  the  conduct  of  various 
pursuits  when  necessary  for  the  protection  of  the  public  " 
(p,  465).  The  portion  of  the  statute  under  consideration 
in  the  last-cited  case  was  plainly  directed  against  an 
obvious  evil  which  vitally  affected  the  public  welfare. 
The  city  of  New  York  is  the  gateway  through  which 
this  country  admits  each  year  thousands  of  poor  and 
ignorant  immigrants  who  deal  with  individuals  and 
firms  engaged  in  the  business  of  exchanging  domestic 
for  foreign  money,  receiving  deposits  and  transmitting 
remittances  to  foreign  ports.  It  is  a  business  which  may, 
and  probably  does,  attract  some  irresponsible  and  mer- 
cenary adventurers.  A  law  designed  to  regulate  and 
safeguard  such  a  business  in  a  way  which  affects  no 
constitutional  property  rights,  is  plainly  within  the 
police  power  of  the  State.  That  is  all  that  was  involved 
in  the  Musco  case,  and  that  is  the  extent  to  which  this 
court  has  passed  upon  the  constitutionality  of  the 
New  York  statute.  Laws  of  1907,  Chapter  185.  It 
need  hardly  be  argued  that  a  law  passed  under  the 
guise  of  such  a  purpose,  but  having  in  fact  no  relation 
to  it,  and  accomplishing  nothing  to  make  the  business 
of  receiving  deposits  more  safe,  would  be  as  far  be- 
yond the  sphere  of  the  police  power  as  an  amendment 
to  the  Banking  Law  requiring  banks  and  bankers  to 
protect  their  customers,  to  whom  they  pay  moneys, 
against  thefts  or  other  physical  losses  thereof;  or  an 
amendment  to  the  Labor  Law  which  would  compel 
the  industrial  employers  to  give  each  employ^  a  vaca- 
tion on  full  pay  during  two  months  of  every  year. 

As  to  the  cases  of  Nohle  State  Bank  v.  Haskell,  219 
U.  S.  104,  and  Assaria  State  Bank  v.  Dolley,  219  U.  S. 


G46    Bradbury's  workmen's  compensation  law 

New  York 

121,  we  have  only  to  say  that  if  they  go  so  far  as  to 
hold  that  any  law,  whatever  its  effect,  may  be  upheld 
because  by  the  ''prevailing  morality"  or  the  ''strong 
and  preponderant  opinion"  it  is  deemed  "to  be  greatly 
and  immediately  necessary  to  the  public  welfare,"  we 
cannot  recognize  them  as  controlling  of  our  construc- 
tion of  our  own  constitution.  That  the  business  of 
banking  in  the  several  States  may  be  regulated  by  leg- 
islative enactment  is  too  obvious  for  discussion.  That 
the  extent  to  which  such  state  regulation  may  be 
carried  must  depend  upon  the  difference  in  constitu- 
tional provisions  is  also  plain.  How  far  these  late  de- 
cisions of  the  Federal  Supreme  Court  are  to  be  regarded 
as  committing  that  tribunal  to  the  doctrine  that  any 
citizen  may  be  deprived  of  his  private  property  for  the 
public  welfare  we  are  not  prepared  to  decide.  All  that 
it  is  necessary  to  affirm  in  the  case  before  us  is  that  in 
our  view  of  the  constitution  of  our  State,  the  liability 
sought  to  be  imposed  upon  the  employers  enumerated 
in  the  statute  before  us  is  a  taking  of  property  without 
due  process  of  law,  and  the  statute  is  therefore  void. 

The  judgment  of  the  Appellate  Division  should  be 
reversed  and  judgment  directed  for  the  defendant, 
with  costs  in  all  courts. 

CULLEN,  Ch.  J.: 

I  concur  in  the  opinion  of  Judge  Werner  for  reversal 
of  the  judgment  appealed  from.  I  concede  that  the 
legislature  may  abolish  the  rule  of  fellow  servant  as 
a  defense  to  an  action  by  employe  against  the  employer. 
Indeed,  we  have  decided  that  in  upholding  the  so-called 
Barnes  Act.  Schradin  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co., 
194  N.  Y.  534.    I  concede  that  the  legislature  may  also 


CONSTITUTIONAL   DECISIONS  647 

New  York 

abolish  as  a  defense  the  rule  of  assumption  of  risk  and 
that  of  contributory  negligence  unless  the  accident 
proceeds  from  the  willful  act  of  the  employ^.  I  concede 
that  in  a  work,  occupation,  or  business  of  such  a  nature 
that  the  legislature  might  prohibit  its  pursuit  or  exer- 
cise altogether,  the  legislature  may  prescribe  terms 
under  which  it  may  be  carried  on.  Plainly,  this 
litigation  does  not  present  such  a  case.  The  legis- 
lature could  not  revoke  the  franchise  it  had  previously 
given  to  the  defendant  to  operate  a  railroad.  People  v. 
O'Brien,  111  N.  Y.  1.  I  am  not  prepared  to  deny  that 
where  the  effects  of  the  work,  even  though  prosecuted 
carefully,  go  beyond  a  person's  own  property  and  in- 
jure third  persons  in  no  way  connected  therewith,  the 
person  for  whose  account  the  work  is  done  may  be  held 
liable  for  injuries  occasioned  thereby.  I  also  concede 
the  most  plenary  power  in  the  legislature  to  prescribe 
all  reasonable  rules  for  the  conduct  of  the  work  which 
may  conduce  to  the  safety  and  health  of  persons  em- 
ployed therein.  But  I  do  deny  that  a  person  employed 
in  a  lawful  vocation,  the  effects  of  which  are  confined  to 
his  own  premises,  can  be  made  to  indemnify  another  for 
injury  received  in  the  work  unless  he  has  been  in  some 
respect  at  fault.  I  am  not  impressed  with  the  argument 
that  * 'the  common  law  imposed  upon  the  employ^ 
entire  responsibility  for  injuries  arising  out  of  the  neces- 
sary risks  or  dangers  of  the  employment.  The  statute 
before  us  merely  shifts  such  Hability  upon  the  em- 
ployer." It  is  the  physical  law  of  nature,  not  of  govern- 
ment, that  imposes  upon  one  meeting  with  an  injury, 
the  suffering  occasioned  thereby.  Human  law  cannot 
change  that.  All  it  can  do  is  to  require  pecuniary  in- 
demnity to  the  party  injured,  and  I  know  of  no  principle 


648    Bradbury's  workmen's  compensation  law 

New  York 

on  which  one  can  be  compelled  to  indemnify  another 
for  loss  unless  it  is  based  upon  contractual  obligation 
or  fault.  It  might  as  well  be  argued  in  support  of  a 
law  requiring  a  man  to  pay  his  neighbor's  debts,  that 
the  common  law  requires  each  man  to  pay  his  own  debts, 
and  the  statute  in  question  was  a  mere  modification 
of  the  common  law  so  as  to  require  each  to  pay  his 
neighbor's  debts.  It  is  urged  that  the  legislation  before 
us  can  be  upheld  on  the  decision  of  the  Supreme  Court 
of  the  United  States  in  Noble  State  Bank  v.  Haskell,  219 
U.  S.  104.  In  support  of  the  claim  there  is  cited  from 
the  opinion  the  following:  "It  may  be  said  in  a  general 
way  that  the  police  power  extends  to  all  the  great  public 
needs.  Camfield  v.  United  States,  167  U.  S.  519.  It 
may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage, 
or  held  by  the  prevailing  morality  or  strong  and  pre- 
ponderant opinion  to  be  greatly  and  immediately  neces- 
sary to  the  public  welfare"  (p.  111).  It  is  possible  that 
the  doctrine  of  these  two  sentences  would  justify  the 
statute  before  us  and  possibly  any  legislation,  if  only 
supported  by  a  sufficient  popular  demand,  but  it  is 
both  unfair  and  unsafe  to  excerpt  fragmentary  sentences 
from  the  opinion  of  a  court  and  interpret  them  apart 
from  the  context  of  the  whole  opinion.  However  that 
may  be,  the  decision  in  the  Noble  Bank  case  is  not 
controlling  upon  this  court  in  the  construction  of  the 
constitution  of  our  own  State,  and  I  am  not  disposed  to 
accept  it,  at  least,  until  it  has  received  the  approval  of 
a  majority  of  the  court.  I  concur  with  Judge  Werner 
that  the  act,  as  applicable  to  the  case  before  us,  cannot 
be  considered  as  an  exercise  of  the  power  of  the  State 
to  regulate  corporations.  The  act  is  general,  not  con- 
fined to  corporations,  and  even  if  it  were,  I  think  its 


CONSTITUTIONAL   DECISIONS  649 

New  York 

effect  would  be  a  deprivation  of  property  not  authorized 
by  the  reserved  power  to  regulate. 

As  to  corporations  hereafter  formed,  the  question 
is  very  different.  The  franchise  to  be  a  corporation  is 
not  one  inherent  in  the  citizen,  but  proceeds  solely 
from  the  bounty  of  the  legislature,  and  for  that  reason 
the  legislature  may  dictate  the  terms  on  which  it  will 
be  granted  and  require  the  acceptance  of  the  provisions 
of  this  act  as  a  condition  of  incorporation.  Purdy  v. 
Erie  R.  R.  Co.,  162  N.  Y.  42;  Minor  v.  Erie  R.  R.  Co., 
171  N.  Y.  566;  People  ex  rel.  Schurz  v.  Cook,  110  N.  Y. 
443;  s.  c,  148  U.  S.  397;  Chicago,  R.  I.  &  Pac.  R.  Co.  v. 
Zernecke,  183  U.  S.  582.  Even  in  the  case  of  existing 
corporations,  the  corporate  existence  of  all  those  created 
since  the  constitution  of  1846  may  be  revoked  by  the 
legislature,  though  the  property  rights  of  such  corpo- 
rations and  their  special  franchises  other  than  the  one 
to  be  a  corporation  cannot  be  impaired.  Const.,  arti- 
cle VIII,  §  1 ;  Lord  v.  Equitable  Life  Assur.  Soc,  194  N.  Y. 
212.  The  property  and  franchise  would  have  to  be 
managed  by  the  owners  as  partners  or  tenants  in  com- 
mon, and  the  legislature  might  require  as  a  condition 
of  the  continued  right  to  be  a  corporation  that  before 
the  expiration  of  a  reasonable  period  the  provisions 
of  the  statute  should  be  accepted  also  by  them.  They 
are  in  the  condition  of  a  tenant  at  will  who,  when  the 
landlord  raises  the  rent,  must  either  comply  with  his 
terms,  or,  after  the  expiration  of  a  reasonable  time 
prescribed  by  a  notice  to  quit,  surrender  his  rights 
under  the  lease.  But  individual  citizens,  following 
the  ordinary  vocations  of  life,  asking  no  favors  of  the 
government,  whether  a  corporate  or  other  franchise, 
but  only  the  protection  of  life  and  property,  which  every 


650    Bradbury's  workmen's  compensation  law 

Massachusetts 

government  owes  to  its  citizens,  and  guilty  of  no  fault, 
cannot  be  compelled  to  contribute  to  the  indemnity 
of  other  citizens  who,  by  misfortune  or  the  fault  of 
themselves  or  others,  have  suffered  injuries,  except 
by  the  exercise  of  the  power  of  taxation  imposed  on 
all,  at  least  all  of  the  same  class,  for  the  maintenance 
of  public  charity.  Of  course,  I  am  not  now  referring 
to  obligations  springing  from  domestic  relations. 

CuLLEN,  Ch.  J.,  Gray,  Haight,  Willard  Bart- 
LETT,  Chase  and  Collin,  JJ.,  concur  with  Werner,  J.; 
CuLLEN,  Ch.  J.,  also  files  an  opinion,  with  whom  Wil- 
lard Bartlett,  J.,  concurs. 

Judgment  reversed,  etc. 


Opinions  of  Justices  ^  as  to  Constitutionality  of 
House  Bill  No.  2154;  Senate  No.  615 

(209  Mass.  607) 

Constitutional  law;  Workmen's  Compensation  Act;  taking  prop- 
erty without  due  process  of  law 

1.  The  rules  of  law  relating  to  contributory  negligence  and 
assumption  of  risk  and  the  effect  of  negligence  by  a  fellow 
servant  were  established  by  the  courts,  not  by  the  Con- 
stitution, and  the  legislature  may  change  them  or  do  away 
with  them  altogether,  as  defenses,  as  in  its  wisdom  in  the 
exercise  of  powers  intrusted  to  it  by  the  Constitution  it 
deems  will  be  best  for  the  "good  and  welfare  of  this  Com- 
monwealth." 

*  Massachusetts  has  a  law  permitting  the  submission  of  the 
question  of  the  constitutionality  of  a  proposed  law  to  the  Supreme 
Court  before  it  is  enacted.  The  decision  in  the  text  was  rendered 
pursuant  to  this  law. 


CONSTITUTIONAL   DECISIONS  651 


Massachusetts 


2.  There  is  nothing  unconstitutional  in  the  provision  of  the 
Compensation  Act  that  it  shall  not  apply  to  domestic 
servants  and  farm  laborers,  nor  in  the  provision  that  an 
employ^  shall  be  deemed  to  have  waived  his  right  of  ac- 
tion at  common  law  if  he  shall  not  have  given  notice  to  his 
employer  as  in  the  act  provided. 

3.  As  the  Compensation  Act  does  not  contain  any  legal  com- 
pulsion to  an  acceptance  by  an  employer  or  an  employ^  of 
the  provisions  for  compensation  in  lieu  of  damages,  it  is 
not  in  conflict  with  the  Fourteenth  Amendment  of  the 
Federal  Constitution  prohibiting  the  taking  of  property 
without  due  process  of  law,  and  constitutes  a  valid  exer- 
cise of  the  power  of  the  legislature  of  the  commonwealth  of 
Massachusetts. 

THE   COMMONWEALTH   OF   MASSACHUSETTS 

To  the  Honorable  the  Senate  of  the  Commonwealth 
of  Massachusetts: 

We  have  received  the  questions,  of  which  a  copy, 
with  the  act  referred  to  therein  and  the  amendment 
adopted  by  the  Senate,  is  hereto  annexed,  and  after 
giving  to  them  such  consideration  as  we  have  been  able 
to  give  in  the  time  at  our  disposal,  we  respectfully 
answer  them  as  follows . 

The  questions  submitted  to  us  are  important,  and 
the  proposed  act  involves  a  radical  departure  in  the 
manner  of  dealing  with  actions  or  claims  for  damages 
for  personal  injuries  received  by  employes  in  the  course 
of  their  employment  from  that  which  has  heretofore 
prevailed  in  this  commonwealth;  but  we  think  that 
nothing  would  be  gained  by  an  extended  discussion 
and  we  therefore  content  ourselves  with  stating  briefly 
the  conclusions  to  which  we  have  come  and  our  reasons 
therefor. 


652    Bradbury's  workmen's  compensation  law 

Massachusetts 

The  first  section  of  the  act  (Part  I,  §  1)  provides  that 
"In  an  action  to  recover  damages  for  personal  injury- 
sustained  by  an  employ^  in  the  course  of  his  employ- 
ment, or  for  death  resulting  from  personal  injury  so 
sustained,  it  shall  not  be  a  defense : 

"1.  That  the  employ^  was  negligent; 

"2.  That  the  injury  was  caused  by  the  negligence 
of  a  fellow  employ^; 

"3.  That  the  employ^  had  assumed  the  risk  of  the 
injury." 

This  section  deals  with  actions  at  common  law.  We 
construe  clauses  1  and  2  in  their  reference  to  negligence 
as  meaning  contributory  negligence  or  negligence  on 
the  part  of  a  fellow  servant  which  falls  short  of  the 
serious  and  willful  misconduct  which  under  Part  II, 
§  2,  will  deprive  an  employe  of  compensation.  So  con- 
strued we  think  that  the  section  is  constitutional.  We 
neither  express  nor  intimate  any  opinion  whether  it 
would  be  unconstitutional  if  otherwise  construed.  The 
rules  of  law  relating  to  contributory  negligence  and 
assumption  of  the  risk  and  the  effect  of  negligence  by 
a  fellow  servant  were  established  by  the  courts,  not 
by  the  Constitution,  and  the  legislature  may  change 
them  or  do  away  with  them  altogether  as  defenses  (as 
it  has  to  some  extent  in  the  Employers'  Liability  Act) 
as  in  its  wisdom  in  the  exercise  of  powers  intrusted  to 
it  by  the  Constitution  it  deems  will  be  best  for  the  "good 
and  welfare  of  this  Commonwealth."  See  Missouri 
Pacific  Railway  v.  Mackey,  127  U.  S.  205;  Minnesota 
Iron  Co.  V.  Kline,  199  U.  S.  593.  The  act  expressly 
provides  that  it  shall  not  apply  to  injuries  sustained 
before  it  takes  effect.  If,  therefore,  a  right  of  action 
which  has  accrued  under  existing  laws  for  personal 


CONSTITUTIONAL   DECISIONS  653 

Massachusetts 

injuries  constitutes  a  vested  right  or  interest,  there  is 
nothing  in  the  section  which  interferes  with  such  rights 
or  interests.  The  effect  of  the  section  is  not  to  authorize 
the  taking  of  property  without  due  process  of  law,  as 
the  Court  of  Appeals  of  New  York  held  was  the  case 
with  the  statute  referred  to  in  the  preamble  to  the  ques- 
tions submitted  to  us,  and  which  in  consequence  thereof 
was  declared  by  that  court  to  be  unconstitutional. 
Ives  V.  South  Buffalo  Railway,  201  N.  Y.  271.  Con- 
struing the  section  as  we  do,  and  as  we  think  that  it 
should  be  construed,  it  seems  to  us  that  there  is  nothing 
in  it  which  violates  any  rights  secured  by  the  state  or 
Federal  constitutions.  We  see  nothing  unconstitutional 
in  providing,  as  is  done  in  Part  I,  §  2,  that  the  provisions 
of  §  1  shall  not  apply  to  domestic  servants  and  farm 
laborers;  nor  in  providing,  as  is  done  in  Part  I,  §  5, 
that  the  employe  shall  be  deemed  to  have  waived  his 
right  of  action  at  common  law  if  he  shall  not  have  given 
notice  to  his  employer  as  therein  provided.  The  effect 
of  the  provisions  referred  to  is  to  leave  it  at  the  em- 
ploye's option  whether  he  will  or  will  not  waive  his  right 
of  action  at  common  law.  See  Foster  v.  Morse,  132 
Mass.  354. 

The  rest  of  the  act  deals  mainly  with  a  scheme  for 
providing,  through  the  instrumentality  of  a  corporation 
established  for  that  purpose  entitled  the  Massachusetts 
Employes'  Insurance  Association,  and  the  subscription 
of  employers  thereto,  for  compensation  to  employes 
for  personal  injuries  received  by  them  in  the  course  of 
their  employment,  and  not  due  to  serious  and  willful 
misconduct  on  their  part.  There  is  nothing  in  the  act 
which  compels  an  employer  to  become  a  subscriber  to 
the  association,  or  which  compels  an  employe  to  waive 


654    Bradbury's  workmen's  compensation  law 

Massachusetts 

his  right  of  action  at  common  law  and  accept  the  com- 
pensation provided  for  in  the  act.  In  this  respect  the 
act  differs  wholly  so  far  as  the  employer  is  concerned 
from  the  New  York  statute  above  referred  to.  By  sub- 
scribing to  the  association  an  employer  voluntarily 
agrees  to  be  bound  by  the  provisions  of  the  act.  The 
same  is  true  of  an  employe  who  does  not  choose  to  stand 
upon  his  common-law  rights.  An  employer  who  does 
not  subscribe  to  the  association  will  no  longer  have  the 
right  in  an  action  by  his  employe  against  him  at  com- 
mon law  to  set  up  the  defense  of  contributory  negligence 
or  assumption  of  the  risk,  or  to  show  that  the  injury 
was  caused  by  the  negligence  of  a  fellow  servant.  In 
the  case  of  an  employ^  who  does  not  accept  the  com- 
pensation provided  for  by  the  act  and  whose  employer 
had  become  a  subscriber  to  the  association,  an  action 
no  longer  can  be  maintained  for  death  under  the  Em- 
ployers' Liability  Act.  But  these  considerations  do  not 
constitute  legal  compulsion  or  a  deprivation  of  funda- 
mental rights.  We  do  not  deem  it  necessary  to  take 
up  and  consider  in  detail  the  numerous  provisions  by 
which  the  right  to  compensation  and  the  amount  thereof 
and  the  persons  entitled  thereto  and  the  course  of 
procedure  to  be  followed  and  matters  relating  thereto 
are  to  be  settled  and  determined.  We  assume,  how- 
ever, that  the  meaning  of  §§  4  and  7  of  Part  III  of  the 
proposed  act  is  that  the  approved  agreement  or  deci- 
sion therein  mentioned  is  to  be  enforced  by  proper 
proceedings  in  court,  and  not  by  process  to  be  issued 
by  the  Industrial  Accident  Board  itself.  Taking  into 
account  the  noncompulsory  character  of  the  proposed 
act,  we  see  nothing  in  any  of  these  provisions  which 
is  not  "in  conformity  with"  the  Fourteenth  Amendment 


CONSTITUTIONAL   DECISIONS  655 

Massachusetts 

to  the  Federal  Constitution  or  which  infringes  upon 
any  provision  of  our  own  constitution  in  regard  to  the 
taking  of  property  "without  due  process  of  law."  It 
is  within  the  power  of  the  legislature  to  provide  that 
no  agreement  by  an  employe  to  waive  his  rights  to 
compensation  under  the  act  shall  be  valid.  See  Mis- 
souri Pacific  Railway  v.  Mackey,  127  U.  S.  205;  Min- 
nesota Iron  Co.  V.  Kline,  199  U.  S.  593. 

In  regard  to  the  amendment  it  is  to  be  observed  that 
no  Uabihty  insurance  company  is  obliged  to  insure, 
and  that  if  it  chooses  to  do  so  there  is  nothing  uncon- 
stitutional in  requiring  that  it  and  the  pohcy  holder 
shall  be  governed  by  the  provisions  of  the  act  so  far 
as  apphcable. 

It  should  be  noted  perhaps  in  the  interest  of  accuracy 
that  there  is  no  phrase  in  our  constitution  which  in 
terms  requires  that  ''property  shall  not  be  taken  from 
a  citizen  without  due  process  of  law."  The  quoted 
words,  which  we  take  from  the  first  question  sub- 
mitted to  us,  are  a  paraphrase  of  what  is  contained  in 
the  constitution,  but  are  not  the  language  of  the  con- 
stitution itself. 

We  have  confined  ourselves  to  the  questions  submitted 
to  us,  and  we  answer  both  of  them  in  the  affirmative. 

Owing  to  their  absence  from  the  commonwealth,  the 
Chief  Justice  and  Mr.  Justice  Loring  have  taken  no 
part  in  the  consideration  of  the  questions. 

James  M.  Morton. 

John  W.  Hammond. 

Henry  K.  Braley. 

Henry  N.  Sheldon. 

Arthur  Prentice  Rugg 
July  24,  1911. 


656    bbadbury's  workmen's  compensation  law 

Wisconsin 


Edward  G.  Borgnis  v.  Falk  Company 

(00  Wis.  000,  133  N.  E.  Rep.  209) 

Constitutional  law;  Workmen's  Compensation  Act;  classifica- 
tion of  employments;  public  policy;  abolishing  common-law 
defenses;  coercing  employers  to  accept  compensation  princi- 
ple; industrial  commission  not  a  court;  violating  obligation  of 
contract 

1.  Where  a  constitution  contains  on  a  particular  subject  no 
express  command  but  only  general  language  or  policy,  the 
conditions  prevailing  at  the  time  of  its  adoption  must  have 
their  due  weight;  but  the  changed  social,  economic  and 
governinental  conditions  and  ideals  of  the  time  as  well  as 
the  problems  which  the  changes  have  produced,  must  also 
logically  enter  into  the  consideration  and  become  influential 
factors  in  the  settlement  of  problems  of  constitutional  in- 
terpretation. 

2.  The  term  "public  policy"  is  frequently  used  very  vaguely, 
and  evidently  is  so  used  in  the  Compensation  Law.  It  is, 
however,  quite  a  definite  thing.  Public  policy  on  a  given 
subject  is  determined  by  the  Constitution  itself  or  by 
statutes  passed  within  constitutional  limitations.  Only  in 
the  absence  of  such  constitutional  or  statutory  determina- 
tion may  it  be  determined  by  the  decisions  of  the  courts. 

3.  The  classification  of  employers  into  those  who  do  and 
those  who  do  not  elect  to  come  under  the  compensation 
feature  of  the  statute  and  giving  to  each  different  rights 
and  remedies  is  not  unlawful 

4.  The  provision  of  the  statute  making  it  applicable  only  to 
employers  who  employ  four  or  more  workmen  does  not 
constitute  an  unlawful  classification. 

5.  The  provision  that  if  one  section  or  portion  of  the  law 
shall  be  declared  to  be  invalid  other  portions  shall  not  be 
affected,  or  shall  be  affected  in  a  particular  way,  is  not 
unconstitutional . 


CONSTITUTIONAL   DECISIONS  657 

WiscoDBin 

6.  There  is  no  greater  right  to  aboUsh  the  common-law  de- 
fenses as  appHcable  to  actions  growing  out  of  injuries  in 
the  hazardous  industries  than  there  is  to  aboUsh  those  de- 
fenses in  relation  to  the  nonhazardous  occupations. 

7.  The  statute  is  not  unconstitutional  as  coercing  employers 
to  accept  its  provisions  by  abolishing  their  common-law 
defenses  if  they  refuse  to  elect  to  be  bound  by  the  com- 
pensation principle. 

8.  The  Industrial  Commission  is  not  a  court  within  the 
meaning  of  article  7,  §  16,  of  the  constitution  of  Wiscon- 
sin and  therefore  the  statute  creating  such  commission  ia 
not  unconstitutional. 

9.  The  right  to  bring  an  action  in  the  future  for  a  tort  not  yet 
committed  can  in  no  way  affect  the  contract  of  employ- 
ment between  an  employer  and  his  employes,  and,  there- 
fore, the  Compensation  Act  is  not  unconstitutional  as 
violating  the  obligation  of  the  contract  between  an  em- 
ployer and  his  workmen. 

Appeal  from  Circuit  Court,  Milwaukee  County; 
W.  J.  Turner,  Judge. 

Suit  by  Edward  G.  Borgnis  and  others  against  the 
Falk  Company,  to  restrain  defendant  from  adopting 
the  Workmen's  Compensation  Law  (Laws  of  1911, 
Chapter  50)  during  the  continuance  of  complainants' 
contracts  of  employment.  From  a  decree  in  favor  of 
complainants,  defendant  appeals.  Reversed  and  re- 
manded, with  directions. 

It  appears  by  the  complaint  that  the  defendant  is 
a  manufacturing  corporation  in  Milwaukee,  employing 
at  its  shops  many  workmen,  among  whom  are  the 
plaintiffs;  the  plaintiff  Borgnis  is  the  superintendent 
of  one  of  the  departments  in  the  defendant's  establish- 
ment at  a  salary  of  $2,000  per  year,  under  a  contract 
42 


658    Bradbury's  workmen's  compensation  law 

Wisconsin 

extending  some  time  in  the  future;  the  plaintiff  Schu- 
macher is  an  infant  17  years  of  age,  employed  under 
an  apprenticeship  contract  which  has  yet  nearly  three 
years  to  run.  The  complaint  further  alleges  that  the 
defendant  threatens  to  file  an  election  to  become  sub- 
ject to  the  provisions  of  Chapter  50  of  the  Session  Laws 
of  1911,  known  as  the  "Workmen's  Compensation 
Law";  that  such  election  will  compel  the  plaintiffs 
severally  to  withdraw  from  their  said  contracts  or  to 
submit  to  the  provisions  of  said  act;  and  that  hence 
said  election  will  thus  work  irreparable  injury  to  the 
plaintiffs,  for  which  they  have  no  adequate  remedy  at 
law.  The  prayer  is  that  the  defendant  be  enjoined 
from  filing  such  election  during  the  continuance  of 
the  contracts.  By  answer  the  defendant  admitted  the 
allegations  of  the  complaint,  except  the  allegations  of 
irreparable  injury  and  absence  of  an  adequate  remedy 
at  law,  which  were  denied,  and  as  an  affirmative  defense 
alleged  that  the  act  in  question  was  null  and  void, 
because  it  violates  a  number  of  specified  articles  of  the 
Constitutions  of  the  State  and  of  the  United  States, 
and  hence  that  the  defendant's  election  to  become  sub- 
ject to  the  act  could  not  possibly  work  any  injury  to 
the  plaintiffs.  Upon  motion,  judgment  was  entered 
upon  the  pleadings  enjoining  the  defendant  from  elect- 
ing to  become  subject  to  the  act  during  the  continuance 
of  the  plaintiffs'  contracts,  and  the  defendant  appeals. 

Carpenter  &  Poss,  for  appellant. 

Arthur  Breslauer  and  Michael  Levin,  for  respondents. 

L.  H.  Bancroft,  Attorney  General,  and  Russell  Jack- 
son, Deputy  Attorney  General,  for  the  State. 


CONSTITUTIONAL   DECISIONS  659 

Wisconsin 

C.  H.  Crownhart,  Joseph  D.  Beck  and  John  R.  Com- 
mons, Industrial  Commission  of  Wisconsin,  pro  se. 

WiNSLOW,  C.  J.  (after  stating  the  facts  as  above) : 

We  are  not  certainly  advised  as  to  the  exact  ground 
on  which  the  decision  below  was  reached,  but  we  assume 
that  it  was  on  the  theory  that  the  law  in  question  was 
a  valid  law;  that  it  was  retrospective  in  its  effect,  and 
that  if  the  defendant  elected  to  become  subject  to  the 
act  the  plaintiffs  would  be  compelled  to  breach  their 
existing  contracts  or  submit  to  the  terms  of  the  act, 
and  thus  lose  valuable  rights;  and  hence  that  equity 
might  and  should  restrain  their  employer  from  electing 
to  come  under  the  law  until  their  existing  contracts 
had  expired. 

It  seems  to  be  true  that  this  action  might  very  well 
be  disposed  of  without  considering  the  question  of  the 
validity  of  the  act  in  question.  Ordinarily  under  such 
circumstances  that  course  would  be  the  proper  one  to 
pursue,  for  the  question  of  the  constitutionality  of  a 
statute  passed  by  the  legislature  is  not  one  to  be  lightly 
taken  up,  and  generally  such  a  question  will  not  be 
decided  unless  it  be  necessary  to  decide  it  in  order  to 
dispose  of  the  case.  There  are  circumstances  here 
present,  however,  which  seem  to  call  very  loudly  for 
immediate  consideration  of  the  question  of  the  validity 
of  the  act  in  question,  if  under  any  view  of  the  case 
it  can  be  considered  as  involved.  The  legislature,  in 
response  to  a  public  sentiment  which  cannot  be  mis- 
taken, has  passed  a  law  which  attempts  to  solve  certain 
very  pressing  problems  which  have  arisen  out  of  the 
changed  industrial  conditions  of  our  time.  It  has  en- 
deavored by  this  law  to  provide  a  way  by  which  em- 


660    Bradbury's  workmen's  compensation  law 

Wisconsin 

ployer  and  employed  may,  if  they  so  choose,  escape 
entirely  from  that  very  troublesome  and  economically 
absurd  luxury  known  as  ''personal  injury  litigation," 
and  resort  to  a  system  by  which  every  employ^  not 
guilty  of  willful  misconduct  may  receive  at  once  a 
reasonable  recompense  for  injuries  accidentally  received 
in  his  employment  under  certain  fixed  rules,  without  a 
lawsuit  and  without  friction. 

A  considerable  number  of  employers  have  accepted 
the  terms  of  the  act,  but  unquestionably  many  are 
waiting  until  the  question  of  the  constitutionality  of 
the  act  be  authoritatively  settled  by  this  court.  Nor 
is  this  attitude  either  blameworthy  or  surprising.  If- 
an  employer  elects  to  accept  the  act  and  proceeds  to  pay 
out  the  sums  which  it  requires  for  a  year  or  more,  and 
then  the  act  should  be  declared  unconstitutional,  it 
might  well  be  that  he  would  have  paid  out  considerable 
sums  which  under  the  former  system  he  would  not  be 
required  to  pay  at  all,  because  he  was  not  negligent,  and 
that  he  would  also  be  subject  to  suits  to  recover  addi- 
tional sums  by  those  who,  without  contributory  negli- 
gence, had  suffered  injury  and  had  received  compensa- 
tion under  the  law.  The  situation  is  unquestionably 
one  of  much  doubt  and  uncertainty  among  the  great 
industries  of  the  State,  and  it  must  remain  such  until 
this  court  has  spoken.  Many  employers  of  labor  who 
have  not  accepted  the  law  have  taken  that  course,  not 
because  they  have  chosen  definitely  to  dechne  the 
terms  of  the  law,  but  because  they  do  not  know  whether 
they  will  be  protected  if  they  accept  and  act  under  it. 
Such  a  condition  of  uncertainty  ought  not  to  be  allowed 
to  exist,  if  it  can  be  removed.  This  court  cannot  prop- 
erly decide  questions  which  are  not  legitimately  in- 


CONSTITUTIONAL   DECISIONS  661 

Wisconsin 

volved  in  bona  fide  lawsuits,  but  it  may  properly  decide 
all  questions  which  are  so  involved,  even  though  it 
be  not  absolutely  essential  to  the  result  that  all  should 
be  decided.  The  vaUdity  of  the  statute  in  question  is 
a  matter  which  may  be  legitimately  considered  in  the 
decision  of  this  case.  If  the  statute  be  unconstitu- 
tional and  void,  then  it  is  certain  that  the  plaintiffs 
have  no  cause  of  action,  because  an  election  to  accept 
the  terms  of  a  void  statute  could  harm  no  one.  Im- 
pressed with  this  view  of  our  duty  under  the  circum- 
stances, we  advanced  the  present  case  upon  the  cal- 
endar, and  invited  argument  upon  the  main  question 
as  to  the  constitutionality  of  the  statute,  not  only 
from  the  Attorney  General  on  behalf  of  the  State,  but 
from  any  attorney  interested  in  the  question.  In  pur- 
suance of  this  invitation  the  Attorney  General  and  the 
Industrial  Commission  filed  briefs,  and  oral  argument 
was  made  by  the  Deputy  Attorney  General.  The 
case  has  been  fully  presented,  therefore,  both  by  brief 
and  argument,  and  we  are  now  to  consider  whether 
there  be  any  solid  foundation  for  the  attack  made  upon 
the  law.  In  undertaking  this  task  it  will  be  necessary 
first  to  set  forth  in  some  detail  its  fundamental  provi- 
sions. 

It  adds  thirty-two  new  sections  to  the  statutes,  the 
first  eight  of  which  sections  are  as  follows:  (The  court 
here  sets  forth  the  first  eight  sections  of  the  statute.) 

By  a  later  act  passed  at  the  same  session  of  the  legis- 
lature (Chapter  485,  Laws  of  1911)  an  Industrial  Com- 
mission, composed  of  three  members,  was  created,  which, 
among  numerous  other  duties,  is  required  to  perform 
all  the  duties  vested  in  the  Industrial  Accident  Board 
aforesaid,  and  thus  the  last-named  board  has  passed 


662    Bradbury's  workmen's  compensation  law 

Wisconsin 

out  of  existence.  In  re  Filer  &  Stowell  Co.  (present 
term),  132  N.  W.  584.  The  act  is  quite  long,  as  the 
compHcated  and  deUcate  subject  with  which  it  deals 
manifestly  requires,  but  its  general  purport  and  effect 
so  far  as  this  case  is  concerned  may  be  briefly  sum- 
marized : 

It  creates  an  administrative  board  to  carry  its  pro- 
visions into  effect.  It  divides  all  private  employers 
of  labor  into  two  classes:  (1)  Those  who  elect  to  come 
under  the  law;  and  (2)  those  who  do  not  so  elect.  It 
takes  away  the  defenses  of  assumption  of  risk,  and 
negligence  of  a  coemploy^  from  the  second  class  (except 
"that  where  there  are  less  than  four  coemploy^s  the 
latter  defense  is  not  disturbed),  but  leaves  both  de- 
fenses intact  to  the  first  class.  It  prescribes  the  manner 
in  which  an  employer  may  elect  to  come  under  its 
terms,  and  how  an  employ^  may  make  his  election, 
and  when  silence  on  the  part  of  the  employe  will  be 
considered  an  election;  but  it  does  not  in  terms  compel 
either  employer  or  employ^  to  submit  to  its  provisions. 
It  then  provides  a  comprehensive  scheme  by  which, 
after  both  parties  have  so  elected,  any  substantial 
injury,  whether  the  result  be  fatal  or  not,  received  by 
the  employe  in  the  course  of  or  incidental  to  his  em- 
ployment (except  those  caused  by  willful  misconduct) 
shall  be  compensated  for  by  the  employer  according 
to  certain  definite  rules,  which  rules  are  to  be  adminis- 
tered by  the  administrative  board  aforesaid  by  means 
of  simple  procedure  definitely  laid  down,  which  gives 
to  both  parties  fair  notice  and  hearing,  and  results  in 
findings  and  an  award  which  may  be  filed  in  the  Circuit 
Court  and  become  a  judgment.  It  further  provides 
that  the  findings  of  fact  shall  be  conclusive  and  the 


CONSTITUTIONAL   DECISIONS  663 

Wisconsin 

award  subject  to  review  only  by  action  in  the  Circuit 
Court  of  Dane  County,  in  which  it  can  be  set  aside 
only  (1)  If  the  commission  acted  without  or  in  excess 
of  its  powers;  (2)  if  the  award  was  procured  by  fraud; 
or  (3)  if  the  award  is  not  supported  by  the  findings  of 
fact.  It  then  provides  that  the  judgment  thus  rendered 
shall  be  subject  to  appeal  to  the  Supreme  Court. 

For  all  the  essential  purposes  of  this  discussion,  it 
may  truly  be  said  that  this  is  the  law  which  is  before 
us,  and  the  question  is  simply  whether  there  is  any 
vital  part  of  it  which  the  legislature  may  not  enact 
because  the  Constitution  forbids  it.  It  is  matter  of 
common  knowlege  that  this  law  forms  the  legislative 
response  to  an  emphatic,  if  not  a  peremptory,  public 
demand.  It  was  admitted  by  lawyers,  as  well  as  lay- 
men, that  the  personal  injury  action  brought  by  the 
employ^  against  his  employer  to  recover  damages  for 
injuries  sustained  by  reason  of  the  negligence  of  the 
employer  had  wholly  failed  to  meet  or  remedy  a  gi'eat 
economic  and  social  problem  which  modern  indus- 
trialism has  forced  upon  us,  namely,  the  problem  of 
who  shall  make  pecuniary  recompense  for  the  toll  of 
suffering  and  death  which  that  industrialism  levies  and 
must  continue  to  levy  upon  the  civilized  world.  This 
problem  is  distinctly  a  modern  problem.  In  the  days 
of  manual  labor,  the  small  shop,  with  few  employes, 
and  the  stagecoach,  there  was  no  such  problem,  or,  if 
there  was,  it  was  almost  negligible.  Accidents  there 
were  in  those  days,  and  distressing  ones ;  but  they  were 
relatively  few,  and  the  employe  who  exercised  any 
reasonable  degree  of  care  was  comparatively  secure 
from  injury.  There  was  no  army  of  injured  and  dying, 
with  constantly  sweUing  ranks  marching  with  halting 


664    Bradbury's  workmen's  compensation  law 

Wisconsin 

step  and  dimming  eyes  to  the  great  hereafter.  This  is 
what  we  have  with  us  now,  thanks  to  the  wonderful 
material  progress  of  our  age,  and  this  is  what  we  shall 
have  with  us  for  many  a  day  to  come.  Legislate  as 
we  may  in  the  line  of  stringent  requirements  for  safety 
devices  or  the  abolition  of  employers'  common-law 
defenses,  the  army  of  the  injured  will  still  increase, 
and  the  price  of  our  manufacturing  greatness  will  still 
have  to  be  paid  in  human  blood  and  tears.  To  speak 
of  the  common-law  personal  injury  action  as  a  remedy 
for  this  problem  is  to  jest  with  serious  subjects,  to  give 
a  stone  to  one  who  asks  for  bread.  The  terrible  eco- 
nomic waste,  the  overwhelming  temptation  to  the  com- 
mission of  perjury,  and  the  relatively  small  proportion 
of  the  sums  recovered  which  comes  to  the  injured  par- 
ties in  such  actions,  condemn  them  as  wholly  inadequate 
to  meet  the  difficulty. 

In  approaching  the  consideration  of  the  present  law, 
we  must  bear  in  mind  the  well-established  principle 
that  it  must  be  sustained,  unless  it  be  clear  beyond 
reasonable  question  that  it  violates  some  constitutional 
limitation  or  prohibition.  That  governments  founded 
on  written  constitutions  which  are  made  difficult  of 
amendment  or  change  lose  much  in  flexibility  and  adap- 
tability to  changed  conditions  there  can  be  no  doubt. 
Indeed  that  may  be  said  to  be  one  purpose  of  the  writ- 
ten constitution.  Doubtless  they  gain  enough  in  sta- 
bility and  freedom  from  mere  whimsical  and  sudden 
changes  to  more  than  make  up  for  the  loss  in  flexibility; 
but  the  loss  still  remains,  whether  for  good  or  ill.  A 
constitution  is  a  very  human  document,  and  must 
embody  with  greater  or  less  fidelity  the  spirit  of  the 
time  of  its  adoption.     It  will  be  framed  to  meet  the 


CONSTITUTIONAL   DECISIONS  665 

Wisconsin 

problems  and  difficulties  which  face  the  men  who  make 
it,  and  it  will  generally  crystallize  w4th  more  or  less 
fidelity  the  political,  social  and  economic  propositions 
which  are  considered  irrefutable,  if  not  actually  in- 
spired, by  the  philosophers  and  legislators  of  the  time; 
but  the  difficulty  is  that,  while  the  Constitution  is 
fixed  or  very  hard  to  change,  the  conditions  and  prob- 
lems surrounding  the  people,  as  well  as  their  ideals,  are 
constantly  changing.  The  poUtical  or  philosophical 
aphorism  of  one  generation  is  doubted  by  the  next, 
and  entirely  discarded  by  the  third.  The  race  moves 
forward  constantly,  and  no  Canute  can  stay  its  progress. 

Constitutional  commands  and  prohibitions,  either 
distinctly  laid  down  in  express  words  or  necessarily 
imphed  from  general  words,  must  be  obeyed,  and  im- 
pHcitly  obeyed,  so  long  as  they  remain  unamended  or 
unrepealed.  Any  other  course  on  the  part  of  either 
legislator  or  judge  constitutes  violation  of  his  oath  of 
office;  but  when  there  is  no  such  express  command  or 
prohibition,  but  only  general  language,  or  a  general 
policy  drawn  from  the  four  corners  of  the  instrument, 
what  shall  be  said  about  this?  By  what  standards  is 
this  general  language  or  general  poHcy  to  be  interpreted 
and  applied  to  present  day  people  and  conditions? 
When  an  eighteenth-century  constitution  forms  the 
charter  of  liberty  of  a  twentieth-century  government, 
must  its  general  provisions  be  construed  and  interpreted 
by  an  eighteenth-century  mind  in  the  light  of  eighteenth- 
century  conditions  and  ideals?  Clearly  not.  This 
were  to  command  the  race  to  halt  in  its  progress,  to 
stretch  the  State  upon  a  veritable  bed  of  Procrustes. 

WTiere  there  is  no  express  command  or  prohibition, 
but  only  general  language  or  pohcy  to  be  considered, 


666    Bradbury's  workmen's  compensation  law 

Wisconsin 

the  conditions  prevailing  at  the  time  of  its  adoption 
must  have  their  due  weight;  but  the  changed  social, 
economic,  and  governmental  conditions  and  ideals  of 
the  time,  as  well  as  the  problems  which  the  changes 
have  produced,  must  also  logically  enter  into  the  con- 
sideration, and  become  influential  factors  in  the  settle- 
ment of  problems  of  construction  and  interpretation. 
These  general  propositions  are  here  laid  down,  not 
because  they  are  considered  either  new  or  in  serious 
controversy,  but  because  they  are  believed  to  be  pe- 
culiarly applicable  to  a  case  like  the  present,  where  a 
law  which  is  framed  to  meet  new  economic  conditions 
and  difficulties  resulting  therefrom  is  attacked  prin- 
cipally because  it  is  believed  to  offend  against  consti- 
tutional guaranties  or  prohibitions  couched  in  general 
terms,  or  supposed  general  policies  drawn  from  the 
whole  body  of  the  instrument. 

Passing  to  the  consideration  of  the  contentions  made 
in  the  present  case,  we  note  in  limine  that  this  is  not 
a  compulsory  law.  No  employer  is  compelled  to  pay 
damages  to  an  employe  without  having  had  his  day 
in  court.  It  is  true  that  the  argument  is  made  that  the 
law  is  practically  coercive;  but  that  argument  is  not 
regarded  by  us  as  sound,  and  will  be  taken  up  and 
treated  later  in  this  opinion.  We  are  therefore  re- 
lieved from  all  consideration  of  the  question  whether 
a  compulsory  compensation  act  offends  against  those 
clauses  of  the  state  and  Federal  constitutions  which 
guarantee  all  citizens  against  the  deprivation  of  prop- 
erty without  due  process  of  law.  This  would  be  a 
question  of  greater  difficulty  than  those  which  are 
presented  in  the  present  case.  It  was  decided  in  the 
affirmative  by  the  Court  of  Appeals  of  New  York 


CONSTITUTIONAL   DECISIONS  667 

Wisconsin 

{Ives  V.  S.  B.  Ry.  Co.,  201  N.  Y.  271;  94  N.  E.  431), 
and  in  the  negative  by  the  Supreme  Court  of  Washing- 
ton [State  ex  rel.  Clausen  (Sept.  27, 1911),  117  Pac.  1101], 
and  we  express  no  opinion  upon  it. 

The  contention  which  naturally  seems  to  come  first 
in  order  is  the  objection  that  the  whole  first  section, 
abolishing  the  defenses  of  assumption  of  risk  and  negli- 
gence of  a  fellow  servant,  is  void,  because,  as  it  is  said, 
public  policy  does  not  require  their  abrogation  in  any 
but  the  hazardous  trades;  it  being  admitted  that  in 
these  last-named  trades  these  defenses  may  properly 
be  abolished. 

The  term  "public  policy"  is  frequently  used  very 
vaguely,  and  evidently  is  so  used  here.  It  is,  however, 
quite  a  definite  thing.  Public  policy  on  a  given  sub- 
ject is  determined  either  by  the  Constitution  itself  or 
by  statutes  passed  within  constitutional  limitations. 
In  the  absence  of  such  constitutional  or  statutory 
determination  only  may  the  decisions  of  the  courts 
determine  it.  Hartford  Ins.  Co.  v.  C,  M.  &  St.  P.  Ry. 
Co.,  70  Fed.  Rep.  201;  17  C.  C.  A.  62;  30  L.  R.  A.  193; 
s.  c,  175  U.  S.  91;  20  Sup.  Ct.  33;  44  L.  Ed.  84.  This 
court  has  said:  "We  know  of  no  ground  upon  which  a 
constitutional  legislative  enactment  can  be  rightly 
spoken  of  as  contrary  to  public  policy."  Julien  v. 
Model  B.  L.  &  I.  Assn.,  116  Wis.  79;  92  N.  W.  561;  61 
L.  R.  A.  668.  And  the  remark  is  certainly  correct. 
When  acting  within  constitutional  limitations,  the  legis- 
lature settles  and  declares  the  public  policy  of  a  State, 
and  not  the  court.  True,  where  the  legislature  has  not 
spoken  on  a  subject,  and  the  courts  in  the  course  of 
their  duty  have  declared  the  principle  of  common  law 
applicable  thereto,  pubUc  pohcy  may  be  truly  said  to 


668    Bradbury's  workmen's  compensation  law 

Wisconsin 

be  thus  created;  but  any  public  policy  thus  created  by 
the  courts  may  be  at  any  time  reversed  or  changed  by 
the  legislature,  provided  it  act  within  constitutional 
lines.  The  people,  acting  directly  by  means  of  a  ref- 
erendum, or  through  their  representatives  in  constitu- 
tional conventions  or  legislative  bodies,  are  the  makers 
of  public  policy,  and  it  is  only  when  the  people  have 
failed  to  speak  in  these  methods  that  the  courts  can  be 
said  to  have  power  to  make  public  policy  by  decision. 
A  constitutional  statute  cannot  be  contrary  to  public 
pohcy — it  is  public  policy. 

The  contention  that  a  statute  is  unconstitutional 
because  it  is  against  public  policy  amounts  to  nothing 
more  than  a  contention  that  it  is  unconstitutional; 
hence  we  address  ourselves  directly  to  that  question 
and  thereby  gain  something  in  clearness  of  thought. 

The  two  defenses  which  the  legislature  has  thus  at- 
tempted to  take  away  are  not  intrenched  behind  any 
express  constitutional  provision,  nor  were  they  origi- 
nally created  by  legislative  action.  They  were  both 
evolved  by  the  courts.  At  a  time  when  industries  of 
all  kinds  were  comparatively  simple  and  free  from 
danger,  when  employes  of  a  common  master  were  few 
in  number  and  generally  acquainted  with  each  other, 
and  when  a  personal  injury  action  was  a  rarity,  it  was 
thought  not  to  be  unreasonable  that  an  employ^  should 
assume  those  simple  risks  which  were  plainly  before 
him,  and  should  not  be  heard  to  complain  if  he  were 
injured  by  the  careless  act  of  a  fellow  workman  by 
whose  side  he  had  continued  to  work  when  he  must 
have  well  known  the  nature  and  habits  of  the  man. 
The  precedent  once  made  was  generally  followed,  until 
it  became  buttressed  by  a  multitude  of  decisions  in 


CONSTITUTIONAL   DECISIONS  669 

Wisconsin 

practically  all  of  the  jurisdictions  whose  jurisprudence 
is  founded  upon  the  Enghsh  common  law.  But,  as 
has  been  pointed  out  earlier  in  this  opinion,  the  condi- 
tions surrounding  employer  and  employed  have  vastly 
changed  during  the  last  half  century,  and  now  the 
legislature,  having  become  convinced  that  new  condi- 
tions call  for  a  change  in  rules  of  liability,  have  declared 
that  such  a  change  shall  be  made.  They  have  changed 
the  rule  established  by  the  courts,  because  they  deem 
another  rule  better  fitted  to  deal  with  the  problems  of 
the  time,  or,  in  other  words,  because  they  deem  it  best 
to  establish  a  changed  public  policy. 

It  is  frankly  admitted  by  appellant  that  it  is  within 
the  legislative  power  to  make  this  change  with  regard 
to  the  hazardous  trades,  but  not  with  regard  to  what 
are  called  the  nonhazardous  trades.  But  why  not? 
There  are,  of  course,  some  occupations  which  are  ex- 
ceptionally hazardous,  and  it  may  well  be  that  it  would 
be  within  legislative  discretion  to  classify  these  very 
hazardous  occupations  and  remove  the  defenses  as  to 
them,  while  retaining  them  as  to  others  less  hazardous. 
Indeed,  that  very  thing  has  been  done  and  has  been 
approved  by  the  courts  in  this  and  many  other  States, 
especially  in  the  case  of  railroads  and  to  some  extent 
with  other  industries.  M.  I.  Co.  v.  Kline,  199  U.  S. 
593;  26  Sup.  Ct.  159;  50  L.  Ed.  322;  Stats.  Wis.,  §  1816, 
as  amended  by  Chapter  254,  Laws  of  1907;  Kiley  v. 
C,  M.  &  St.  P.  Ry.  Co.,  142  Wis.  154;  125  N.  W.  464; 
Stats.  Wis.,  §§  1636i-1636j;  (Chapter  303,  Laws  of 
1905). 

But  because  there  is  room  for  classification  it  does 
not  follow  that  legislation  without  classification  is  un- 
constitutional.   There  are  hazards  in  all  occupations; 


670    Bradbury's  workmen's  compensation  law 

Wisconsin 

indeed,  they  follow  every  man  from  the  cradle  to  the 
grave.  What  constitutional  requirement,  either  express 
or  implied,  clothes  these  court-made  defenses  witl 
exceptional  sanctity  as  to  the  less  hazardous  industries 
and  warns  off  from  them  the  sacrilegious  hand  of  th( 
legislature?  We  are  referred  to  none,  and  we  kno\^ 
of  none.  It  is  admitted  in  the  Ives  case,  supra,  thai 
both  the  fellow-servant  defense  and  the  contributory 
negligence  defense,  being  of  judicial  origin,  may  b( 
changed  or  abolished  by  the  legislature.  See,  also 
Opinion  of  the  Justices  of  the  Massachusetts  Supreme  Ju 
dicial  Court  on  the  Personal  Injuries  Act  of  1911,  201 
Mass.  607,  96  N.  E.  308.  We  see  absolutely  no  grounc 
for  the  contention  that  these  defenses  may  be  lawfull;^ 
abrogated  as  to  the  more  hazardous  industries,  bui 
must  be  forever  held  sacred  as  to  the  less  hazardous 
industries.  There  may  be  a  less  persuasive  reason  fo] 
the  change  in  the  case  of  the  latter  class  of  industries 
but  this  does  not  deprive  the  legislature  of  the  powe] 
to  make  it. 

But  it  is  said  that  there  is  no  proper  classificatior 
here,  and  hence  that  the  law  is  fatally  discriminating 
in  its  character.  The  two  defenses  are  preserved  intaci 
to  employers  who  elect  to  come  under  the  law  anc 
taken  away  from  those  who  do  not  so  elect.  The  rules 
governing  classification  are  familiar  and  are  in  brie] 
as  follows :  It  must  be  based  on  substantial  distinctions 
which  make  real  differences;  it  must  be  germane  tc 
the  purposes  of  the  law;  it  must  not  be  hmited  to  exist- 
ing conditions  only  and  must  apply  equally  to  eacl; 
member  of  the  class.  It  seems  to  us  that  this  classifi- 
cation fully  meets  these  requirements;  certainly  then 
will  be  very  real  differences  between  the  situation  ol 


CONSTITUTIONAL   DECISIONS  671 

Wisconsin 

the  employer  who  elects  to  come  under  the  law  and  the 
employer  who  does  not.  If  the  consentmg  employer 
only  employs  workmen  who  also  elect  to  come  under 
the  law,  he  can  never  be  mulcted  in  heavy  damages, 
and  will  know  whenever  an  employe  is  injured  prac- 
tically just  what  must  be  paid  for  the  injury.  Surely 
this  is  a  different  situation  from  the  situation  of  the 
man  who  is  Uable  to  be  brought  into  court  by  an  injured 
employe  at  any  time  and  obliged  to  defend  common- 
law  actions  upon  heavy  claims  unliquidated  in  their 
character,  the  outcome  of  which  actions  none  can  fore- 
tell. On  the  other  hand,  if,  as  seems  quite  hkely,  the 
greater  part  of  the  consenting  employer's  workmen 
consent,  but  some  do  not,  and  these  latter  are  still 
retained  in  the  emplojnnent,  the  same  considerations 
will  apply  with  somewhat  less  force.  On  the  one  hand, 
there  is  a  class  of  consenting  employers  emplojdng 
wholly  or  largely  consenting  workmen,  and  having 
definite  and  fixed  obligations  to  their  workmen  in  case 
of  injury;  on  the  other  hand  is  a  class  of  nonconsenting 
employers  who  have  no  such  fixed  obligations  in  case 
of  injury  to  their  workmen,  but  choose  to  meet  every 
such  workman  in  court  and  fight  out  the  question  of 
Hability.  There  seems  a  very  robust  difference  between 
these  two  classes.  But  after  all  there  is  another  dis- 
tinction which  seems  perhaps  more  satisfactory.  The 
consenting  employer  has  done  his  share,  and  it  must  be 
considered  a  considerable  share,  in  rendering  successful 
the  legislative  attempt  to  meet  and  solve  a  difficult 
social  and  economic  problem.  Even  if  it  be  true  (which, 
as  before  stated,  is  not  decided)  that  he  may  not  be 
compelled  under  our  constitutions,  state  and  national, 
to  assist  in  the  solution  of  this  problem,  still  does  not 


672    Bradbury's  workmen's  compensation  law 

Wisconsin 


his  voluntary  act  in  giving  that  assistance  constitute 
a  substantial  distinction,  making  a  real  difference  of 
situation  between  him  and  the  employer  who  refuses 
his  aid — a  difference  which  justifies  a  difference  in 
treatment? 

It  seems  to  us  that  this  question  must  be  answered 
in  the  affirmative,  and  if  it  be  so  answered  there  can 
be  no  doubt  as  to  the  legitimacy  of  the  classification, 
for  the  reason  that  it  is  quite  apparent  that  the  other 
conditions  of  valid  classification  are  fully  satisfied. 
There  can  be  no  doubt  that  the  classification  is  germane 
to  the  purpose  of  the  law,  and  it  is  not  limited  in  its 
application  to  existing  conditions  only,  and  appUes 
equally  to  each  member  of  the  class. 

The  minor  classification  by  which  the  fellow-servant 
defense  is  preserved  to  all  employers  employing  less 
than  four  employes  in  a  common  employment  is  also 
attacked  as  having  no  proper  legal  basis;  but  it  seems 
to  us  that  the  grounds  of  classification  here  are  more 
persuasive  even  than  in  the  case  just  discussed.  The 
man  who  is  employed  with  one  or  two  other  men  in  a 
given  employment  in  all  reasonable  probability  knows 
their  characteristics  well,  and  will  probably  be  with 
them  a  great  part  of  the  time.  He  will  have  ample 
opportunity  to  form  a  just  judgment  as  to  the  risk  of 
injury  from  their  negligence  which  he  will  run  if  he 
works  with  them,  and  will  be  enabled  to  shape  his  own 
conduct  accordingly;  but  the  man  who  is  one  of  a  large 
number  of  men,  many  of  whom  he  never  sees,  and  some 
of  these  latter  having  duties  to  perform  in  distant 
places  upon  the  due  performance  of  which  his  own 
safety  depends,  has  no  opportunity  to  acquire  any 
accurate  knowledge  of  the  characteristics  of  many  of 


CONSTITUTIONAL   DECISIONS  673 

Wisconsin 

his  fellow  workmen,  and  cannot  intelligently  decide 
what  risk  he  runs  at  the  hands  of  such  distant  and  un- 
known employes.  The  difference  in  situation  is  not 
merely  fanciful;  it  is  real.  In  one  case,  the  employ^ 
knows  or  has  the  means  of  knowing  what  to  expect 
from  his  colaborers;  in  the  other  case,  he  has  neither 
the  knowledge  nor  the  means  of  knowledge.  Of  course, 
there  will  be  cases  on  the  border  line,  where  the  differ- 
ence in  situation  will  be  very  slight,  or  perhaps  entirely 
nonexistent.  There  will  probably  be  no  practical  differ- 
ence between  the  situation  of  the  man  who  is  one  of 
four  or  five  employes  in  a  given  employment  and  the 
situation  of  the  man  who  is  one  of  three;  but  this  does 
not  militate  against  the  legitimacy  of  the  classification. 
This  is  a  necessary  defect  in  all  cases  of  classification 
based  upon  numbers.  The  question  is  not  whether 
there  may  be  some  on  one  side  of  the  fine  whose  situa- 
tion is  practically  the  same  as  that  of  some  on  the 
other  side,  but  whether  there  ''is  a  distinction  between 
the  classes  as  classes,  whether  there  are  characteristics 
which,  in  a  greater  degree,  persist  through  the  one 
class  than  in  the  other  which  justify  legal  discrimina- 
tion between  them."  State  v.  Evans,  130  Wis.  381; 
110  N.  W.  241. 

Passing  from  these  questions  of  classification,  we 
meet  the  objection  that  the  law,  while  in  its  words 
presenting  to  employer  and  employ^  a  free  choice  as 
to  whether  he  will  accept  its  terms  or  not,  is  in  fact 
coercive,  so  that  neither  employer  nor  employ^  can  be 
said  to  act  voluntarily  in  accepting  it.  As  to  the  em- 
ployer, the  argument  is  that  the  aboUtion  of  the  two 
defenses  is  a  club  which  forces  him  to  accept;  and  as 
to  the  employ^,  the  argument  is  that  if  his  employer 
.     43 


674    Bradbury's  workmen's  compensation  law 

Wisconsin 

accepts  the  law  the  employ^  will  feel  compelled  to  accept 
also,  through  fear  of  discharge  if  he  do  not  accept. 

Both  of  these  arguments  are  based  upon  conjecture. 
Laws  cannot  b&  set  aside  upon  mere  speculation  or 
conjecture.  The  court  must  be  able  to  say  with  cer- 
tainty that  an  unlawful  result  will  follow.  We  do  not 
see  how  any  such  thing  can  be  said  here.  No  one  can 
say  with  certainty  what  results  will  follow  in  the  prac- 
tical workings  of  the  law.  It  may  well  be  that  many 
manufacturers,  especially  those  employing  small  num- 
bers of  employes  and  in  the  less  dangerous  trades,  will 
deliberately  conclude  that  it  will  be  better  business 
policy  to  exercise  greater  care  in  guarding  their  em- 
ployes from  possible  danger  and  greater  discrimination 
in  the  employment  of  careful  men,  and  reject  the  law 
entirely,  running  the  risk  of  being  able  to  prevent  all 
or  nearly  all  accidents.  It  seems  extremely  probable 
that  the  great  bulk  of  workmen,  especially  of  the 
unskilled  classes,  will  be  glad  to  come  under  the  act 
and  thus  secure  a  certain  compensation  in  case  of  in- 
jury, in  place  of  that  very  uncertain  and  expensive 
thing,  namely,  the  final  result  of  a  lawsuit ;  but  whether 
this  be  so  or  not,  it  may  be  considered  as  reasonably 
certain  that  very  many  will  elect  to  come  under  the  act 
voluntarily  and  freely,  and  that  those  who  do  not  will 
probably  come  from  the  ranks  of  skilled  labor,  who 
will  deem  the  rates  of  compensation  under  the  law  as 
entirely  inadequate,  or  will  be  careful  workmen  in  the 
less  dangerous  trades,  who  will  see  no  gain  in  bartering 
their  common-law  rights  for  the  restricted  remedies 
furnished  by  the  statute.  It  cannot  be  said  with  any 
certainty  that  such  men  will  be  discharged  for  their 
failure  to  voluntarily  come  under  the  law.    The  proba- 


CONSTITUTIONAL   DECISIONS  675 

Wisconsin 

bility  would  seem  rather  to  be  that  they  would  be  of 
a  class  which  the  employer  would  wish  to  keep  in  his 
employ,  notwithstanding  their  attitude  toward  the 
law.  These  matters  are,  however,  purely  speculative 
and  conjectural.  None  can  say  what  the  practical 
operation  of  the  law  will  be.  It  is  enough  for  our  pres- 
ent purpose  that  no  one  can  say  with  certainty  that  it 
will  operate  to  coerce  either  employer  or  employe. 

We  thus  reach  the  conclusion  that  there  are  no  valid 
constitutional  objections  to  the  first  section  of  the  law 
in  question,  and  this  conclusion  obviates  the  necessity 
of  any  consideration  of  the  provisions  of  §  2394-32, 
which  aims  to  preserve  the  balance  of  the  law  intact 
in  case  the  whole  or  some  part  of  §  1  should  be  con- 
sidered invalid.  We  may  say  in  passing  that  we  know 
of  no  good  reason  why  the  legislature  may  not  declare 
its  intention  that  one  part  or  section  of  a  law  is  not  a 
compensation  for  and  that  it  may  be  separated  from 
the  balance  of  the  act  for  the  very  purpose  of  saving 
such  balance  from  being  invalidated  in  case  the  first- 
named  part  or  section  be  held  unconstitutional.  We 
think  it  would  take  a  very  extreme  case  of  palpable 
absurdity  or  falsity  in  such  a  provision  to  justify  any 
court  in  declaring  such  a  declaration  of  legislative 
intent  ineffective,  if  indeed  a  court  could  make  such  a 
declaration  at  all. 

The  next  important  contention  is  that  the  law  is  un- 
constitutional because  it  vests  judicial  power  in  a  body 
which  is  not  a  court  and  is  not  composed  of  men  elected 
by  the  people  in  violation  of  those  clauses  of  the  state 
constitution  which  vest  the  judicial  power  in  certain 
courts  and  provide  for  the  election  of  judges  by  the 
people,  as  well  as  in  violation  of  the  constitutional 


676    Bradbury's  workmen's  compensation  law 

Wisconsin 

guaranties  of  due  process  of  law.  It  was  suggested  at 
the  argument  that  the  Industrial  Commission  might 
perhaps  be  held  to  be  a  court  of  conciliation,  as  author- 
ized to  be  created  by  §  16  of  article  7  of  the  state  con- 
stitution; but  we  do  not  find  it  necessary  to  consider 
or  decide  this  contention.  We  do  not  consider  the 
Industrial  Commission  a  court,  nor  do  we  construe  the 
act  as  vesting  in  the  commission  judicial  powers  within 
the  meaning  of  the  constitution.  It  is  an  administra- 
tive body  or  arm  of  the  government,  which  in  the  course 
of  its  administration  of  a  law  is  empowered  to  ascertain 
some  questions  of  fact  and  apply  the  existing  law 
thereto,  and  in  so  doing  acts  quasi  judicially;  but  it  is 
not  thereby  vested  with  judicial  power  in  the  con- 
stitutional sense. 

There  are  many  such  administrative  bodies  or  com- 
missions, and  with  the  increasing  complexity  of  modern 
government  they  seem  likely  to  increase  rather  than 
diminish.  Examples  may  be  easily  thought  of.  Town 
boards,  boards  of  health,  boards  of  review,  boards  of 
equalization,  railroad  rate  commissions,  and  public 
utility  commissions  all  come  within  this  class.  They 
perform  very  important  duties  in  our  scheme  of  govern- 
ment, but  they  are  not  legislatures  or  courts.  The 
legislative  branch  of  the  government  by  statute  deter- 
mines the  rights,  duties  and  liabilities  of  persons  and 
corporations  under  certain  conditions  of  fact,  and  vary- 
ing as  the  facts  and  conditions  change.  Manifestly  the 
legislature  cannot  remain  in  session  and  pass  a  new 
act  upon  every  change  of  conditions;  but  it  may  and 
does  commit  to  an  administrative  board  the  duty  of 
ascertaining  when  the  facts  exist  which  call  into  ac- 
tivity certain  provisions  of  the  law,  and  when  condi- 


CONSTITUTIONAL   DECISIONS  677 

Wisconsin 

tions  have  changed  so  as  to  call  into  activity  other  pro- 
visions. The  law  is  made  by  the  legislature;  the  facts 
upon  which  its  operation  is  dependent  are  ascertained 
by  the  administrative  board.  While  acting  within  the 
scope  of  its  duty,  or  its  jurisdiction,  as  it  is  sometimes 
called,  such  a  board  may  lawfully  be  endowed  with 
very  broad  powers,  and  its  conclusions  may  be  given 
great  dignity  and  force,  so  that  courts  may  not  reverse 
them  unless  the  proof  be  clear  and  satisfactory  that 
they  are  wrong.  M.,  St.  P.  &  S.  S.  M.  R.  Co.  v.  R.  R. 
Com.,  136  Wis.  146;  116  N.  W.  905;  17  L.  R.  A.  (N.  S.) 
821.  Not  only  this,  but  many  such  boards  are  created 
whose  decisions  of  fact  honestly  made  within  their 
jurisdiction  are  not  subject  to  review  in  any  proceeding. 
State  ex  rel.  v.  Chittenden,  112  Wis.  569;  88  N.  W.  587; 
State  ex  rel.  v.  Wharton,  117  Wis.  558;  94  N.  W.  359; 
State  ex  rel.  Cook  v.  Houser,  122  Wis.  534-561;  100 
N.  W.  964;  State  ex  rel.  v.  Trustees,  138  Wis.  133;  119 
N.  W.  806;  20  L.  R.  A.  (N.  S.)  1175.  It  is  important 
to  notice  the  Umitation  contained  in  the  last  sentence. 
The  decision  of  such  a  board  may  be  made  conclusive 
when  the  board  is  acting  within  its  jurisdiction,  not 
otherwise.  Hence  the  question  of  its  jurisdiction  is 
one  always  open  to  the  courts  for  review.  It  cannot 
itself  conclusively  settle  that  question,  and  thus  endow 
itself  with  power.  If  no  appeal  from  its  conclusions 
be  provided,  the  question  whether  it  has  acted  within 
or  exceeded  its  jurisdiction  is  always  open  to  the  exami- 
nation and  decision  of  the  proper  court  by  writ  of  cer- 
tiorari. The  instances  where  the  question  of  jurisdic- 
tion of  such  bodies  has  been  examined  and  decided  in 
certiorari  actions  are  so  numerous  that  it  seems  un- 
necessary to  cite  them.    In  such  cases  it  is  considered 


678    Bradbury's  workmen's  compensation  law 

Wisconsin 

that  clear  violations  of  law  in  reaching  the  result  reached 
by  the  board,  such  as  acting  without  evidence  when 
evidence  is  required,  or  making  a  decision  contrary  to 
all  the  evidence,  constitute  jurisdictional  error,  and  will 
justify  reversal  of  the  board's  action,  as  well  as  the 
failure  to  take  the  proper  steps  to  acquire  jurisdiction 
at  the  beginning  of  the  proceeding.  State  ex  ret.  Augusta 
V.  Loshy,  115  Wis.  57;  90  N.  W.  188. 

Thus,  in  the  case  before  us,  the  jurisdiction  of  the 
Industrial  Commission  to  entertain  any  claim  for  com- 
pensation under  the  act  rests  upon  two  facts  which 
must  exist,  viz.:  (1)  That  both  employer  and  employ^ 
have  elected  to  come  under  the  act;  and  (2)  that  the 
injury  was  received  in  service  growing  out  of  or  inci- 
dental to  the  employment  as  the  result  of  accident, 
and  not  of  willful  misconduct. 

The  Industrial  Commission  must,  of  course,  decide 
these  questions  in  any  case  where  they  are  raised;  but  it 
cannot  decide  them  conclusively,  for  they  are  jurisdic- 
tional questions  on  which  its  right  to  act  at  all  depends. 
They  must  be  open  to  review  in  some  court  of  compe- 
tent jurisdiction;  otherwise,  the  parties  would  be  denied 
due  process  of  law.  The  tribunal  only  has  authority 
over  those  who  have  voluntarily  elected  to  give  it 
authority,  and  if  it  can  decide  finally  that  a  man  has 
given  consent,  when  he  has  not,  it  assumes  the  func- 
tions of  a  court.  If  the  act  before  us  took  away  from 
the  courts  the  power  to  consider  these  jurisdictional 
questions,  either  expressly  or  by  necessary  implication, 
the  contention  that  judicial  power  had  been  vested  in 
the  commission,  contrary  to  the  command  of  the  con- 
stitution, would  be  of  greater  force;  but  we  think  that 
the  act  does  not  do  this,  or  attempt  to  do  it.    True, 


CONSTITUTIONAL   DECISIONS  679 

Wisconsin 

it  says  that  the  findings  of  fact  made  by  the  commis- 
sion shall,  in  the  absence  of  fraud,  be  conclusive;  but 
it  provides  for  an  action  in  the  Circuit  Court  of  Dane 
County,  in  which  the  board's  award  may  be  set  aside 
upon  either  of  three  grounds,  viz.:  (1)  That  the  board 
acted  without  or  in  excess  of  its  powers;  (2)  that  the 
award  was  procured  by  fraud;  and  (3)  that  the  findings 
of  fact  do  not  support  the  award. 

We  regard  the  expression  ''without  or  in  excess  of 
its  powers"  as  substantially  the  equivalent,  or  at  least 
as  inclusive  of  the  expression  "without  or  in  excess  of 
its  jurisdiction,"  as  those  words  are  used  in  certiorari 
actions  to  review  the  decisions  of  administrative  officers 
and  bodies.  We  know  of  no  other  construction  that 
can  be  logically  given  to  them,  and  it  seems  to  us  that 
they  were  designedly  and  advisedly  inserted  by  the 
framers  of  the  bill  to  meet  the  very  objection  which  is 
now  made.  With  this  construction,  it  is  certain  that 
the  constitutional  powers  of  the  courts  have  not  been 
invaded,  and  that  no  man  without  his  consent  can  be 
brought  under  the  law  or  is  deprived  of  his  right  to 
"due  process  of  law"  thereby. 

There  are  some  further  objections  which  will  be  more 
briefly  considered.  It  is  said  that,  even  if  it  be  held 
that  the  act  is  not  coercive,  still  when  employer  and 
employ^  consent  to  come  under  the  law  they  in  effect 
wholly  stipulate  away  their  rights  to  resort  to  the  courts, 
and  that  such  agreements  are  void,  citing  Fox  v.  M.  F. 
A.  Assn.,  96  Wis.  390;  71  N.  W.  363.  The  case  cited, 
however,  recognizes  the  companion  principle  that  agree- 
ments to  arbitrate  special  matters,  such,  for  instance, 
as  the  amount  of  the  loss  under  an  insurance  pohcy 
(or,  as  in  the  present  case,  the  extent  of  an  injury  or 


680    Bradbury's  workmen's  compensation  law 

Wisconsin 

disability,  and  the  like),  which  do  not  go  to  the  whole 
groundwork  of  the  controversy,  are  universally  sus- 
tained. As  we  have  seen,  these  special  matters  are  the 
only  matters  which  the  board  may  conclusively  decide 
under  this  law.  If  there  be  a  controversy  as  to  funda- 
mental rights,  namely,  whether  the  parties  have  con- 
sented, or  as  to  whether  the  injuries  resulted  from 
willful  misconduct,  these  issues  are  still  open  to  the 
court  upon  the  appeal. 

In  considering  the  question  as  to  how  far  consent 
may  go  in  matters  of  this  kind,  a  case  not  cited  in  the 
briefs  or  mentioned  in  the  oral  argument  should,  we 
think,  be  referred  to  here,  viz.,  the  case  of  Van  Slyke  v. 
Insurance  Co.,  39  Wis.  390;  20  Am.  Rep.  50.  In  this 
case  it  appeared  that  the  legislature  had  passed  a  law 
providing  that  in  case  of  the  filing  of  an  affidavit  of 
prejudice  against  a  circuit  judge  the  parties  might, 
if  they  chose,  stipulate  that  a  member  of  the  bar  should 
act  as  judge  and  try  the  case,  with  all  the  powers  of  the 
regularly  elected  judge  of  the  court.  Acting  on  this 
law,  the  parties  in  the  case  agreed  that  Mr.  John  J. 
Cole  should  try  the  case,  and  he  did  so,  rendered  judg- 
ment for  the  plaintiff,  and  the  defendant  appealed. 
The  court  held  (Chief  Justice  Ryan  writing  the  opinion) 
that  the  constitution  having  vested  all  the  judicial 
power  of  the  State  in  the  courts,  and  provided  for  the 
election  of  judges  for  such  courts,  the  legislature  could 
confer  no  judicial  power  on  other  officers  or  persons, 
nor  authorize  the  parties  to  an  action  to  do  so;  hence 
there  was  no  trial  before  a  court,  and  no  judgment. 
The  question  as  to  whether  the  defeated  party  might 
not  be  prevented  from  raising  any  objection  by  his 
voluntary  waiver  was  not  considered  or  mentioned; 


CONSTITUTIONAL   DECISIONS  681 

Wisconsin 

but  in  any  event  the  case  has  no  bearing  here,  and  is 
only  mentioned  in  order  to  show  that  it  has  not  been 
overlooked.  It  only  decides  that  neither  the  legislature 
nor  private  parties  can  make  a  judge  out  of  a  private 
citizen,  and  endow  him  with  the  power  to  hold  a  court, 
contrary  to  the  direct  command  of  the  Constitution. 
As  the  commission  in  the  present  case  is  not  a  court, 
but  simply  an  administrative  board,  the  doctrine  laid 
down  in  the  cases  cited  has  no  appUcation. 

Again,  it  is  said  that  the  act  compels  municipalities 
to  levy  taxes  for  other  than  public  purposes,  since  all 
workmen  injured  in  the  employ  of  the  public  are  to  be 
compensated,  and  thus  taxpayers  will  be  deprived  of 
their  property  without  due  process  of  law.  We  have  not 
been  quite  able  to  appreciate  the  force  of  this  point, 
and  we  find  no  argument  upon  it  in  the  brief.  We  shall 
only  say  that  the  manner  in  which  the  State  or  the 
public  shall  treat  its  workmen  is  peculiarly  a  matter 
for  the  legislature  to  determine.  No  one  is  compelled 
to  work  for  the  public,  and,  if  he  does,  he  takes  his 
situation  on  the  terms  which  the  public  gives.  We 
know  of  no  reason  why  the  public,  acting  by  its  law- 
making power,  may  not  provide  that  its  employes 
shall  have  as  part  of  their  compensation  certain  in- 
demnities in  case  of  accidental  injury  in  the  public 
service.  When  a  law  does  so  provide,  the  raising  of  the 
funds  to  discharge  those  indemnities,  becomes  plainly 
a  proper  public  purpose. 

Objection  is  made  to  those  clauses  of  §  2394-16 
which  provide  for  the  giving  of  notice  of  claim  by  mail, 
and  allow  testimony  to  be  taken  without  notice  to 
either  party,  and  the  claim  is  made  that  this  is  not 
"due  process  of  law."    Were  the  commission  a  court, 


682    Bradbury's  workmen's  compensation  law 


Wisconsin 


these  objections  would  probably  deserve  serious  con- 
sideration, especially  the  latter  one.  But,  as  we  have 
seen,  the  commission  is  an  administrative  board  merely. 
It  is  common  knowledge  that  such  boards  are  frequently 
given  power  to  investigate  and  determine  facts  without 
notice  to  the  parties  of  each  successive  step  in  the  pro- 
ceedings. The  proceedings  before  such  boards  are  not 
expected  to  be  as  formal  and  cumbrous  as  the  pro- 
ceedings of  courts;  indeed,  the  greater  flexibility  which 
such  bodies  must  possess  if  they  are  to  discharge  their 
duties  seems  to  demand  greater  freedom  of  action.  If  ■ 
notice,  either  actual  or  constructive,  of  the  commence- 
ment of  the  proceedings  before  such  a  body  be  required 
to  be  given  to  the  parties  interested,  and  they  be  given 
full  and  free  opportunity  to  be  heard  and  present  evi- 
dence, it  is  generally  held  sufficient,  even  though  notice 
of  intermediate  steps  in  the  proceeding  be  not  required 
or  given.  Schintgen  v.  La  Crosse,  117  Wis.  158;  94 
N.  W.  84.  In  case  of  a  board  like  the  present,  which 
only  acts  on  the  rights  of  parties  who  have  consented 
that  it  may  so  act,  the  reason  of  the  rule  is  far  stronger. 
Some  contention  is  made  in  the  brief  that  minors 
cannot  be  treated  in  the  same  manner  as  adults,  and 
that  the  provision  of  the  law  which  declares  that  a  minor 
who  is  legally  entitled  to  work  shall  have  the  same 
power  of  contracting  for  service  as  an  adult  is  objec- 
tionable, because  it  allows  the  employer  to  decide 
whether  the  law  shall  treat  his  minor  employes  as  adults. 
The  objection  seems  to  us  fanciful  and  elusive.  There 
is  no  claim  that  the  legislature  may  not  endow  minors 
with  the  right  to  make  contracts  otherwise  lawful,  and, 
if  this  be  so,  it  seems  to  us  to  be  the  end  of  the  discussion. 
After  the  minor  is  so  endowed,  he  becomes  for  the  pur- 


CONSTITUTIONAL   DECISIONS  683 

Wisconsin 

poses  of  the  act  an  adult,  or  at  least  on  the  same  plane. 
No  adult  employ^  of  a  private  employer  can  elect  to 
come  under  the  act  unless  his  employer  has  first  elected 
to  do  so.  So  the  employer  has  the  power  to  decide 
whether  any  of  his  employes,  infant  or  adult,  shall  have 
the  privileges  of  the  act  if  they  continue  to  work  for 
him.  This  is  practically  all  there  is  of  the  matter, 
and  we  see  no  substantial  distinction  between  the 
effect  of  the  law  upon  the  adult  and  its  effect  upon 
the  minor. 

The  foregoing  considerations  are  believed  to  fully 
meet  and  dispose  of  all  the  objections  made  to  the  law 
which  could  reasonably  be  claimed  to  be  fatal  to  the 
entire  law  if  sustained.  There  are  many  objections 
made  to  single  sections  or  clauses  of  the  law,  which  we 
do  not  find  it  necessary  or  advisable  to  treat  at  this 
time.  Even  should  some  or  all  of  them  be  sustained, 
it  is  our  judgment  that  the  sections  or  clauses  so  ques- 
tioned could  not  be  said  to  be  so  far  compensations  for 
or  inducements  to  the  balance  of  the  law  that  the  entire 
law  must  fall.  In  our  judgment  it  is  better  to  reserve 
these  questions  for  consideration  when  an  actual  case 
arises  which  calls  for  the  decision  of  the  court  upon 
them.  It  is  well-nigh  impossible  for  the  human  mind 
to  call  up  and  contemplate  in  advance  all  the  considera- 
tions which  ought  to  be  considered  in  passing  upon  the 
validity  of  the  various  incidental  clauses  of  a  new  and 
complicated  law.  The  concrete  case  and  its  actual 
circumstances  and  effects  are  apt  to  throw  much  light 
upon  the  question  and  suggest  considerations  wholly 
unthought  of  when  viewing  the  matter  abstractly  in 
advance  of  any  actual  experience. 

Among  these  contentions,  which  we  now  pass  without 


684    Bradbury's  workmen's  compensation  law 

Wisconsin 

decision,  perhaps  the  most  important  is  the  contention 
that  so  much  of  §  2394-16  as  provides  that  the  board 
or  any  member  thereof,  or  any  examiner  appointed 
thereby,  shall  have  power  to  issue  subpoenas,  obedience 
to  which  shall  be  enforced  by  contempt  proceedings 
in  the  Circuit  Court.  This  seems  to  present  a  serious 
question,  worthy  of  careful  examination,  and  we  inti- 
mate no  opinion  upon  it  now. 

Other  minor  contentions,  which  we  do  not  consider 
it  necessary  or  advisable  to  pass  upon  now,  are  to  the 
effect  that  the  clauses  are  void  which  empower  the  com- 
mission (1)  to  declare  and  enforce  penalties  against  the 
employer  for  failure  to  perform  certain  orders  of  the 
board  made  pending  hearing  (§2394-17);  (2)  to  set 
aside  or  modify  contracts  of  settlement  previously  made 
by  the  parties  (§2394-15);  and  (3)  to  regulate  the 
amount  of  contingent  attorney's  fees  and  permit  one 
claimant  to  make  a  contract  which  it  may  refuse  to 
allow  another  to  make  (§  2394-22). 

Before  closing,  we  shall  briefly  refer  to  another  ques- 
tion which  was  not  much  discussed  on  the  argument, 
namely,  the  question  whether  the  law  applies  or  was 
intended  to  apply  to  persons  who,  like  the  plaintiffs, 
are  employed  under  contracts  of  service  made  prior 
to  the  passage  of  the  law,  and  which  do  not  expire 
until  some  definite  date  in  the  future,  and,  if  so,  whether 
the  law  can  apply  to  them  without  impairing  the  obliga- 
tions of  their  contracts,  and  thus  violating  the  constitu- 
tion. As  to  the  first  branch  of  this  question,  we  think 
that  the  language  of  the  act  leaves  no  doubt  as  to  the 
intention  of  the  legislature.  The  entire  act  by  express 
terms  was  to  become  effective  September  1,  1911.  Its 
provisions  are  broad,  and  without  express  exception, 


CONSTITUTIONAL   DECISIONS  685 

Wisconsin 

read  according  to  their  grammatical  meaning,  they 
include  all  employers  and  employes,  who  occupy  those 
relations  at  the  time  the  law  becomes  effective.  If 
there  was  an  intention  to  exclude  any  from  its  terms, 
that  intention  has  been  carefully  concealed.  We  con- 
clude that  it  was  intended  to  include  all  employers  and 
employes,  whatever  the  term  of  service.  The  question 
whether  the  act  as  so  construed  affects  an  existing  con- 
tract of  service  expiring  at  some  distant  period  in  the 
future  is  easily  answered  in  the  negative,  as  it  seems  to 
us.  Certainly  the  law  does  not  affect  the  service  to  be 
rendered,  or  the  wages  to  be  paid  in  any  way.  Neither 
the  obligation  of  the  workman  to  faithfully  do  his  work, 
nor  the  obligation  of  the  employer  to  faithfully  pay  the 
stipulated  wage,  nor  the  remedy  in  case  of  breach  by 
either  party,  is  in  any  way  affected.  What,  then,  is 
affected?  Plainly  no  provision  of  the  contract;  but, 
if  the  employer  elects  to  come  under  the  law,  the  em- 
ploye must  choose  whether  he  will  come  under  it  or  not, 
and  if  he  does  not  wish  to  come  under  it  he  may  run 
the  risk  of  being  discharged,  or  if  he  wishes  to  retain 
his  employment  he  may  feel  compelled  to  elect  to  come 
under  the  law,  and  thus  lose  his  right  to  bring  an  action 
at  law  in  case  of  a  personal  injury  sustained  in  the  em- 
ployment. 

But  all  this  does  not  in  any  way  affect  the  contract 
of  employment.  That  remains  absolutely  unimpaired 
in  all  its  terms.  The  right  to  bring  an  action  in  the 
future  in  case  of  a  possible  tort  not  yet  committed  is 
no  part  of  the  contract  of  employment.  That  right 
arises  out  of  the  relation  of  employer  and  employe, 
and  is  subject  to  change  by  the  lawmaking  power  at 
any  time.     The  employer  does  not  contract  that  it 


686    Bradbury's  workmen's  compensation  law 

Wisconsin 

shall  remain  intact.  There  is  no  vested  right  in  a  mere 
remedy  for  a  hypothetical  wrong.  At  most  the  law 
cannot  be  said  to  do  more  than  change  the  remedy  for 
a  tort  which  is  yet  to  happen,  and  may  never  happen. 
The  legislature  may  change  the  remedies  for  torts  yet 
to  be  conmiitted  at  any  time,  and  such  changes  cannot 
be  said  to  make  any  change  in  mere  contracts  of  service 
existing  between  the  parties.  This  seems  very  patent. 
The  legislature  has  at  many  times  within  the  last  two 
decades  passed  laws  very  materially  changing  the  lia- 
bilities of  employers  to  employes  for  injuries  resulting 
from  the  negligent  acts  of  the  employer,  e.  g.,  the  laws 
requiring  the  protection  of  machinery,  abolishing  as- 
sumption of  risk  in  such  cases,  abolishing  the  coem- 
ploy6  rule  as  to  railway  companies,  and  changing  the 
rules  as  to  contributory  negligence.  In  no  case  has  the 
claim  ever  been  made  that  these  laws  in  any  way  af- 
fected or  impaired  existing  contracts  of  service  for 
terms  expiring  in  the  future  although  many  cases  must 
doubtless  have  occurred  where  those  laws  were  applied 
to  parties  who  were  under  such  contracts. 

We  have  now  discussed  all  of  the  contentions  made 
against  the  law  which  we  deem  entitled  to  detailed 
treatment,  and  we  find  no  serious  difficulty  in  sustain- 
ing its  fundamental  and  essential  provisions.  As  said 
in  the  beginning  of  this  opinion,  this  law  forms  the 
answer  of  the  legislature  to  a  very  widespread  demand. 
It  is  a  legislative  attempt  to  reach  within  constitutional 
lines  some  fair  solution  of  a  serious  problem  which 
other  nations,  not  restricted  by  written  constitutional 
inhibitions,  have  solved  or  partially  solved  years  ago. 
Doubtless  the  law  will  need  and  will  receive  changes 
and  amendments  as  time  shall  test  its  provisions  and 


CONSTITUTIONAL   DECISIONS  687 

Wisconsin 

demonstrate  its  weak  points.  It  would  be  unreasonable 
to  expect  that  a  law  covering  so  important  a  subject 
along  lines  not  before  attempted  should  be  perfect, 
or  very  near  perfect,  upon  its  first  enactment.  If  ex- 
perience shall  demonstrate  that  it  is  practicable  and 
workable,  and  operates  either  wholly  or  in  great  meas- 
ure to  put  an  end  to  that  great  mass  of  personal  in- 
jury litigation  between  employer  and  employe,  with  its 
tremendous  waste  of  money  and  its  unsatisfactory  re- 
sults, which  now  burdens  the  courts,  the  long  and  pains- 
taking labors  of  those  legislators  and  citizens  who 
collaborated  in  framing  it  will  be  fittingly  rewarded  by 
a  result  so  greatly  to  be  desired.  That  result  will  mean 
a  distinct  improvement  in  our  social  and  economic 
conditions. 

The  effect  of  our  conclusions  upon  the  result  in  the 
present  case  is  yet  to  be  considered.  The  complaint 
was  sustained,  and  the  injunction  granted,  on  the 
ground  apparently  that,  the  law  being  valid,  the  plain- 
tiffs would  be  greatly  injured  if  their  employer  elected 
to  become  bound  by  it,  because  they  would  be  obliged 
either  to  break  their  existing  contracts  or  lose  their 
common-law  remedies  for  their  employer's  torts.  Grant- 
ing all  that  plaintiffs  claim  as  to  the  necessary  results 
of  their  employer's  election,  it  is  very  certain  that  no 
irreparable  injury  results  to  them.  If  their  employer 
breaks  his  contract  of  employment  because  they  decline 
to  accept  the  new  law,  they  have  adequate  legal  reme- 
dies for  the  recovery  of  damages.  If,  on  the  other  hand, 
they  elect  to  come  under  the  law  themselves,  they*  lose 
no  vested  or  contract  right,  and  are  not  damaged  in 
the  eyes  of  the  law  by  the  change  in  their  remedies  for 
future  torts.    In  either  event  there  is  no  cause  of  action 


088    Bradbury's  workmen's  compensation  law 

Wisconsin 

in  equity,  and  no  ground  for  an  injunction.    The  com- 
plaint should  have  been  dismissed  on  the  pleadings. 

Judgment  reversed,  and  action  remanded,  with  direc- 
tions to  dismiss  the  complaint. 

Barnes,  J.  (concurring) : 

I  concur  in  the  opinion  of  the  Chief  Justice,  except 
in  so  far  as  it  is  said  in  effect  that  our  constitutions 
may  mean  one  thing  to-day  and  something  different  to- 
morrow, depending  on  whether  conditions  and  ideals 
have  in  the  meantime  undergone  a  change.  I  regard 
our  constitutions  as  immutable,  except  when  changed 
in  the  manner  therein  prescribed.  Judges,  interpreting 
our  fundamental  laws,  may  at  one  time  reach  con- 
clusions different  from  those  which  would  be  reached 
at  another  time.  This  does  not  argue  that  the  consti- 
tutional provision  under  consideration  has  undergone 
any  change,  but  demonstrates  that  judges,  being  finite 
beings,  made  a  mistake  at  one  time  or  the  other.  No 
act  of  the  legislature  should  be  declared  unconstitu- 
tional unless  it  is  clearly  so.  This  is  elementary.  By 
hewing  closely  to  this  line,  there  is  little  danger  of  the 
courts  committing  any  serious  blunders  in  interpreting 
our  organic  laws.  If  a  legislative  act,  measured  by  this 
standard,  trenches  on  the  Constitution,  it  should  be 
held  void,  regardless  of  whether  or  not  the  provision 
violated  is  out  of  harmony  with  twentieth-century 
conditions  and  ideals.  To  hold  otherwise  is  to  say 
that  the  courts  may  change  our  fundamental  laws. 
This  would  be  a  clear  usurpation  of  power,  never  vested 
nor  intended  to  be  vested  in  the  courts,  and  one  which 
was  reserved  to  the  people  themselves.  I  am  a  firm 
believer  in  constitutional  government.    I  do  not  share 


CONSTITUTIONAL   DECISIONS  689 

Wisconsin 

the  belief  that  our  constitutions  have  become  archaic,  or 
that  they  have  outlived  their  usefulness.  If  the  opinion 
of  the  court  is  intended  to  mean  that  it  is  a  doubtful 
question  whether  our  constitutions  should  be  preserved 
or  thrown  in  the  ''scrap  heap,"  I  do  not  agree  with  it. 

Marshall,  J.  (concurring)  : 

The  result,  itself,  meets  with  my  unqualified  approval. 
Some  language  in  the  court's  opinion,  however,  respect- 
ing the  Constitution,  I  fear  will  be  construed  in  a  differ- 
ent way  than  the  writer  thereof,  or  any  member  of  the 
court,  intended  or  would  sanction,  tending  to  impair 
the  lofty  character  of  the  fundamental  law  as  signifi- 
cantly maintained  by  this  court.  I  am  not  alone  in 
that.  Other  language  appears  which  does  not  express 
my  personal  views.  True,  none  of  such  is  matter  of 
decision  or  even  judicial  dicta,  but,  if  left  unchallenged, 
it  is  liable  to  misleadingly  indicate  a  trend  of  judicial 
thought  here  which,  I  am  safe  in  saying,  does  not  exist. 
I  choose  to  avoid  responsibility  therefor.  It,  seemingly, 
is  my  duty  to  do  so.  In  discharging  that  duty  I  wish 
not  to  take  from  the  dignity  of  the  court's  able  opinion 
on  the  vital  questions  presented  for  solution.  I  do  not 
understand  they  involved  any  new  constitutional,  or 
any,  question  of  difficulty,  giving  rise,  under  any  cir- 
cumstances, to  desire  a  broader  fundamental  spirit 
than  has  been  long  firmly  entrenched  in  the  jurispru- 
dence of  this  country. 

The  law  approved  is  a  very  mild  piece  of  legislation. 
While  I  would  not  suggest  it  is  too  moderate  for  now — 
for  that  is  not  within  my  province — yet  I  would  not 
indicate  that  the  legislature  responded  as  fully  as  it 
might  to  the  need  for  a  system  as  directly  as  practicable, 
44 


690    Bradbury's  workmen's  compensation  law 

Wisconsin 

laying  the  personal  injury  burdens  of  production  upon 
the  things  produced  where  they  belong,  as  should  have 
been  efficiently  recognized  long  ago,  and  would  have 
been  had  the  lawmaking  power  appreciated  that  it  is 
its  province,  not  that  of  courts,  to  cure  infirmity  in  the 
law.  If  criticisms,  unjustly  and  freely  directed  toward 
the  latter  and  the  human  instrumentalities  thereof, 
merely  because  of  their  fidelity  to  duty  to  maintain  the 
laws  as  given,  had  been  turned  upon  the  former  for 
failure  to  better  conserve  human  happiness  in  the  in- 
dustrial field  in  the  light  of  twentieth-century  condi- 
tions, untold  suffering  might  have  been  prevented, 
which  only  the  people's  representatives  could  prevent. 
Tardy  recognition  of  such  duty  casts  no  reflection  upon 
legislative  actors  of  to-day.  Who  can  say  but  that 
they  would  have  had  the  same  ideals  as  now,  and 
effected  the  same  results  long  ago  if  opportunity  had 
been  offered  them  to  do  so?  It  has  been,  in  the  past, 
far  easier  to  criticise  a  power  which  was  helpless  to 
supply  a  remedy,  than  to  suggest  one  or  move  legisla- 
tive power  to  adopt  one. 

I  am  constrained  to  write  the  foregoing  to  give  de- 
served credit  to  the  patient,  earnest,  efficient  labor  of 
the  lawmakers  who  placed  the  enactment  in  question 
upon  the  statute  book  of  this  State.  It  would  give  them 
too  little  credit  to  record,  merely,  that  they  bowed 
to  public  demand,  and  too  little  credit  to  this  court  to 
leave  room  for  the  thought  that  it  has  been  influenced 
by  any  such  demand  to  give  the  Constitution  any  new 
shade  of  meaning  to  sustain  the  enactment,  or  that  it 
would  change,  or  arrogate  to  itself  power  or  disposition 
to  change,  fundamentals  in  any  sense,  by  judicial  in- 
terpretation. 


CONSTITUTIONAL   DECISIONS  691 

Wisconsin 

As  to  the  subject  of  the  enactment,  advanced  thinkers 
in  economics,  law  and  legislation  have  been  at  the  front 
and  the  public  has  been  slow  to  follow.  It  took  the 
industrious,  able,  patient,  tactful  legislative  committee 
over  two  years  of  activity,  to  educate  the  people  up  to 
willingness  to  accept  on  trial  the  mild  law  before  us. 
Opposition  had  to  be  overcome  by  education  on  all 
sides.  The  legislature  responded,  not  so  much  to  a 
general  demand,  as  to  a  constitutional  command,  to 
conserve,  in  the  light  of  the  present,  the  public  welfare. 

The  remarks  in  the  court's  opinion  which  may  suggest 
to  some  that  a  different  meaning  is  to  be  read  out  of 
the  Constitution  now  than  formerly;  that  it  may  have 
meant  one  thing  when  framed  and  later  another,  and 
now  be  held  differently,  according  to  judicial  interpre- 
tation to  meet  social  necessities  as  recognized  by  human 
instrumentalities  in  the  particular  environment — prob- 
ably was  not  so  intended,  but  I  sense  danger  of  a  con- 
trary impression  going  out.  Such  ability  to  bend  the 
fundamental  law  in  the  name  of  judicial  interpreta- 
tion— the  idea  that  an  eighteenth-century  construction 
for  an  eighteenth-century  condition  may  not,  and  at  the 
hands  of  the  court  does  not  have  to,  fit  a  twentieth- 
century  condition — ^has  been  advanced  by  some,  but 
not,  significantly  at  least,  by  any  court.  On  the  con- 
trary, it  has  met  with  universal  condemnation.  That 
it  is  wrong,  every  man  of  eminence  that  has  ever  written 
upon  the  subject  in  the  past,  as  well  as  the  very  nature 
of  the  case  and  the  very  logic  and  limitations  of  judicial 
interpretation,  bear  witness.  The  fertile  method  of 
dealing  with  the  Constitution  has  been  characterized 
as  one  which  has  ''furnished  a  mode  of  argument  which 
would  on  the  one  hand  leave  the  Constitution  crippled 


692    Bradbury's  workmen's  compensation  law 

Wisconsin 

and  inanimate,  or  on  the  other  give  it  an  extent  of 
elasticity  subversive  of  all  rational  boundaries."  Story, 
Constitution,  389. 

Manifestly,  there  can  be  but  one  right  interpretation 
or  construction  of  the  Constitution.  It  is  said  to  have 
been  constructed  of  general  declarations,  so  that,  in 
letter  and  spirit,  it  might  abide  indefinitely  and  would 
have  to  so  abide,  dealing  with  all  conditions  and  all 
ages,  except  as  amended  in  the  manner  therein  specified. 
Considerately  with  that,  there  can  be  but  one  view- 
point for  interpretation,  and  that  is  the  one  from  which 
the  framers  of  the  system  builded.  That  is  unmis- 
takably indicated  in  Marhury  v.  Madison,  1  Cranch, 
137;  2  L.  Ed.  60;  Martin  v.  Hunter,  1  Wheat.  304;  4  L. 
Ed.  97. 

We  speak  of  the  Constitution  in  a  general  sense — 
the  American  system,  commencing  with  the  Federal 
model  and  including  the  state  constitutions  framed  in 
harmony  therewith.  In  all  writings  thereon,  from  Chief 
Justice  Marshall  to  date,  the  idea  that  it  cannot  be 
properly  judicially  changed  to  suit  the  notions  of  the 
times,  and  that  there  will  appear  little  need  therefor 
when  the  real  nature  thereof  is  comprehended,  is  made 
prominent.  It  was  that  idea,  largely,  which  moved  one 
eminent  writer  to  speak  of  it  as  the  "greatest  single 
achievement  of  the  eighteenth  century,"  and  another 
to  characterize  it  as  the  "most  wonderful  work  ever 
struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man."  Truly,  it  cannot  be  said  of  that  which  was  so 
unequaled  in  the  eighteenth  century,  and,  we  may 
well  add,  was  unequaled  in  the  nineteenth  and  has 
been  since,  that  it  can  take  the  cast,  so  to  speak,  from 
time  to  time  of  its  environment  as  judicial  instrumen- 


CONSTITUTIONAL  DECISIONS  693 

Wisconsin 


talities  may  view  it  through  the  vista  of  conditions  in 
prcesenti.  All  history  says  no.  The  very  inconsistency 
of  the  contrary  says  no.  The  absence  of  any  necessity 
for,  and  the  destructive  danger  of,  any  such  quality, 
say  no. 

A  new  remedy  for  a  new  condition  within  the  bound- 
aries of  reason  is  within  legitimate  police  authority. 
Who  could  wish  more?  How  could  more  exist  and 
hiunan  liberty — natural,  inherent  rights — be  safe? 
Would  it  not  be  well  to  recur  to  the  classic  rule  for 
testing  legitimacy  of  legislative  enactments,  given  by 
the  most  eminent  judicial  expounder  of  the  Constitu- 
tion of  which  the  history  of  American  jurisprudence 
bears  record : 

"Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  consist  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional."  McCulloch  v.  Mary- 
land, 4  Wheat.  316,  421;  4  L.  Ed.  579. 

With  that  and  the  significance  of  the  declared  purpose 
and  central  thought  of  the  Constitution  in  mind,  much 
of  the  supposed  difficulty  which  has  stimulated  sugges- 
tions of  competency  to,  and  necessity  for,  bending  it 
by  a  usurpations  method  of  interpretation,  will  dis- 
appear. 

How  are  we  to  determine  when  the  purpose  of  a  law, 
in  the  field  of  police  power,  and  unaffected  by  any 
express  prohibition,  is  legitimate?  It  seems  the  answer 
is  easy.  Look  first  to  the  purpose  of  the  Constitution, 
found  in  the  declaration,  ''Grateful  to  Almighty  God 
for  our  freedom,  in  order  to  secure  its  blessings,  form  a 
more  perfect  union,  insure  domestic  tranquillity  and 


694    Bradbury's  workmen's  compensation  law 

Wisconsin 

promote  the  general  welfare"  we  "do  establish  this 
Constitution."  Then  to  the  central  thought — the  very 
superstructure — upon  which  the  whole  was  builded: 
"All  men  are  born  equally  free  and  independent  and 
have  certain  inherent  rights,  among  those  are  life, 
liberty  and  the  pursuit  of  happiness."  There  is  voiced 
a  broad  spirit,  covering  as  this  court  has,  in  effect,  many 
times  said,  a  field  as  hmitless  as  are  human  needs.  The 
language  was  not  used  for  mere  rhetorical  ornamenta- 
tion or  effect,  but  to  suggest  the  permissible  scope  of 
legislation  in  the  zone  of  general  welfare,  its  extent  and 
its  limitations.  Durkee  v.  Janesville,  28  Wis.  464;  9  Am. 
Rep.  500;  State,  etc.,  v.  Kreutzberg,  114  Wis.  530;  90 
N.  W.  1098;  58  L.  R.  A.  748;  91  Am.  St.  Rep.  934;  State, 
etc.,  V.  Redmon,  134  Wis.  89;  114  N.  W.  137;  14  L.  R.  A. 
(N.  S.)  229;  126  Am.  St.  Rep.  1003;  Bonnett  v.  Vallier, 
136  Wis.  193;  116  N.  W.  885;  17  L.  R.  A.  (N.  S.)  486;  128 
Am.  St.  Rep.  1061. 

So  here,  as  it  seems,  the  initial  question  was  this : 
Is  the  purpose  of  the  law  legitimate,  within  the  broad* 
dominating  spirit  mentioned?  The  answer  must  be 
yes,  as  the  manifest  purpose  is  to  promote  every  element 
of  the  central  thought  of  the  Constitution.  Anything 
fairly  within  that  has  always  been  and  must,  necessarily 
always,  be  held  legitimate.  Keeping  in  mind  that  in 
the  selection  of  means  the  legislature  has  a  very  broad 
comprehensive  field  in  which  to  freely  make  a  choice, 
the  next  question  is,  are  the  means  contemplated  rea- 
sonably appropriate  to  the  end  to  be  attained?  Not  are 
they  the  best  means,  but  are  they  proper  means,  in 
that  they  are  not  within  any  express  prohibition  and 
tend  to  conserve  rather  than  to  destroy?  All  must 
agree  in  the  affirmative  on  that  in  harmony  with  the 


CONSTITUTIONAL  DECISIONS  695 

Wisconsin 

best  thought  of  all  the  more  civilized  nations  of  Europe. 
The  difficulty  here  has  been,  want  of  appreciation  of 
the  great  economic  truth,  that  personal  injury  losses 
incident  to  industrial  pursuits,  as  certainly  as  wages, 
are  a  part  of  the  cost  of  production  of  those  things 
essential  to  or  proper  for  human  consumption,  and  the 
more  direct  they  are  incorporated  therein,  the  less  the 
enhancement  of  cost  and  the  better  for  all. 

True,  the  old  remedies  for  losses  mentioned  have 
been  inefficient  and  wasteful.  They  are,  economically 
speaking,  unscientific  and  have  always  been.  It  is 
more  apparent  now  than  formerly  by  reason  of  greater 
and  more  numerous  modern  activities  and  methods, 
that  is  all.  In  truth,  the  infirmity  from  an  economic 
standpoint,  and  from  the  standpoint  of  man's  duty  to 
his  fellow  men,  has  always  existed,  though  the  quantum 
of  regrettable  results  and  useless  waste  has  greatly 
increased  by  the  multiplication  of  human  activities 
and  physical  instrumentalities. 

So  it  will  be  seen,  I  think,  that  while  particular 
means  may  be  reasonably  appropriate  to  a  legitimate 
purpose  under  some  conditions  characterizing  a  par- 
ticular period,  and  not  have  been  at  a  prior  time,  no 
change  in  the  Constitution  is  involved  in  remedying  the 
misfit.  The  end  being  proper  the  legitimacy  of  means 
may  be  dependable  upon  conditions,  the  question  turn- 
ing more  on  matter  of  fact  than  anything  else.  The 
change  of  mere  means  does  not  require  a  fundamental 
change,  so  long  as  legitimacy  of  end  and  reasonable 
appropriateness  of  means  shall  be  kept  efficiently  in 
view. 

Want  of  appreciation,  in  my  judgment,  of  the  Con- 
stitution from  the  viewpoint  suggested,  has  led  some  to 


696    Bradbury's  workmen's  compensation  law 

Wisconsin 

advocate  judicial  changes  to  meet  new  conditions,  while 
others  have  insisted  that  many  amendments,  made  in 
the  prescribed  way,  practically  substituting  a  new  sys- 
tem for  that  of  the  fathers,  are  necessary  or  advisable, 
and  still  others  have  maintained  the  broad  liberal  view 
suggested,  which  was  early  entrenched  in  the  juris- 
prudence of  this  country  by  the  judicial  writings  of 
Chief  Justice  John  Marshall.  That  idea  renders 
changes  of  any  kind  unnecessary  to  legislative  compe- 
tency to  legislate  to  any  extent  which  reasonably  pro- 
motes a  constitutional  object.  Any  tiling  further  would 
destroy,  or  tend  to  destroy,  instead  of  promote  public 
welfare.  Such  idea  is  the  safe  one  and  the  right  one 
from  the  viewpoint,  I  think,  of  the  fathers.  It  is  the 
one  sturdily  maintained  by  this  court.  It  is  the  one  I 
feel  competent  to  say,  all  members  of  this  court  would 
now  maintain  and  that  nothing  in  its  opinion  should 
be  otherwise  taken. 

If  the  Constitution  is  to  efficiently  endure,  the  idea 
that  it  is  capable  of  being  resquared,  from  time  to  time, 
to  fit  new  legislative  or  judicial  notions  of  necessities 
in  prcesenti,  instead  of  new  legislation  being  tested  by 
it,  must  be  combated  whenever  and  wherever  advanced, 
and  wrong  impressions  in  regard  to  the  matter  carefully 
guarded  against.  To  even,  significantly,  speak  of  mak- 
ing the  Constitution  adaptable  to  new  conditions  by 
means  of  interpretation,  when  the  selection  of  new 
and  constitutional  means,  adaptable  to  such  conditions, 
is  meant,  is  liable  to  confuse  and  weaken  that  high 
regard  all  should  have  for  the  fundamental  law  as  a 
broad,  definite,  certain,  comprehensive,  unvarying  and 
unvariable  system,  other  than  by  the  means  therein 
pointed  out.     Dark  will  be  the  day,  if  that  day  will 


CONSTITUTIONAL   DECISIONS  697 

Wisconsin 

ever  come,  for  the  people  of  this  country,  and  dark  to 
the  people  of  all  countries  whose  attention  is  directed 
here  for  lessons  in  constitutional  government,  when 
our  system  shall  not  be  held  up  by  the  courts  as  speak- 
ing the  same  at  one  time  as  at  another,  except  in  so  far 
as  changes  shall  be  made  in  the  particular  way.  That 
is  the  doctrine  of  Marbury  v.  Madison,  1  Cranch,  137; 
2  L.  Ed.  60.  No  one  can  read  that  great  exposition 
of  our  system  without  appreciating  how  illogical  it  is 
to  speak  of  interpretation  as  an  instrumentahty  for 
giving,  from  time  to  time,  a  different  cast  to  the  funda- 
mental law.  The  whole  spirit  of  the  court's  logic  con- 
demns such  reasoning  as  heresy.  Note  the  significance 
of  this:  ''The  exercise  of  this  original  right"  to  make 
a  system  of  government  "is  a  very  great  exertion,  nor 
can  it,  nor  ought  it  to  be  frequently  repeated.  The 
principles  therefore,  so  established,  are  deemed  funda- 
mental, and  as  the  authority  from  which  they  proceed 
is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent."  In  that  connection  the  court  added,  in 
unanswerable  logic,  that  the  Constitution  is  not  only 
the  paramount  law,  but  is  absolutely  unchangeable  by 
ordinary  means ;  that  laws  adaptable  to  it  are  legitimate, 
and  laws  so  called,  not  so  adaptable,  are  not  laws  at  all. 
It  was  designed  to  govern  the  legislature  and  the  courts 
as  well.  That  conception  is  of  something  high  above 
either  legislatures  or  courts,  to  vary  it.  How  can  that 
be  done  by  indirection,  miscalled  interpretation  and 
construction — a  method  of  rounding  a  syllogism  with 
a  conclusion  based  on  false  premises.  Interpretation 
of  that  sort  would  enable  courts  to  evade  and  render 
useless  the  most  carefully  drawn  enactments  whether 
of  fundamental  or  subsidiary  law. 


698    Bradbury's  workmen's  compensation  law 

Wisconsin 

So,  in  short,  I  think  the  law  in  question  is  a  reasonably 
appropriate  means  to  effect  a  constitutional  purpose; 
that  the  constitution  needs  no  bending  whatever  in  order 
to  sustain  it  in  its  essential  features,  and  none  v/ould 
be  proper  if  the  contrary  were  the  case. 

The  foregoing  I  can  but  regard  out  of  harmony  with 
this,  in  its  letter:  "Changed  social,  economic  and 
governmental  conditions  and  ideals  of  the  time,  as 
well  as  the  problems  the  changes  have  produced,  must 
largely  enter  into  the  consideration  and  become  in- 
fluential factors  in  the  settlement  of  problems  of  con- 
struction and  interpretation" — so  far  as  it  is  pregnant 
with  the  thought  that  the  fundamental  law  is  judicially 
changeable.  The  words  ' '  problems  "  of  "  construction ' ' 
and  "interpretation"  I  think  were  unfortunately  used, 
if  the  thought  was  merely  of  problems  of  whether  new 
enactments  to  cope  with  new  conditions  are  within  or 
without  the  legitimate  field  of  legislative  activity,  hav- 
ing regard  to  appropriateness  of  means  to  effect  a  con- 
stitutional end.  The  latter  might  be,  as  I  have  sug- 
gested, at  one  time  and  not  a  half  century  theretofore, 
because  changed  conditions  may  render  an  end  legiti- 
mate, within  the  unchangeable  scope  of  the  funda- 
mental law,  which  earlier  was  not,  or  the  selected  means 
to  effect  that  end  might  be  reasonably  appropriate  at 
one  time,  though  not  so  a  century,  more  or  less,  there- 
tofore. 

Why  treat  judicial  interpretation  of  law  as  a  process 
of  following  changing  ideals,  social  problems  and  ideas, 
since  its  sole  office  is  to  solve  uncertainties  as  to  the 
intent  at  the  time  of  the  enactment?  Interpretation 
commences  where  begins  uncertainty — obscurity  as  to 
the  meaning  the  lawgivers  purposed  putting  into  the 


CONSTITUTIONAL   DECISIONS  699 


Wisconsin 


enactment  and  succeeded,  discoverably,  in  expressing, 
literally  or  inferentially.  In  short,  the  gist  of  the  mat- 
ter is  the  intent  when  the  law  was  made,  not  what  one 
can  make  the  language  say  in  a  different  environment 
from  that  of  its  origin  to  accomplish  a  desired  purpose. 
No  bending  is  permissible  for  the  latter  purpose,  but 
for  the  former  the  very  letter  may  have  to  give  way  to 
the  spirit.  State,  etc.,  v.  Ryan,  99  Wis.  123;  74  N.  W. 
544;  State,  etc.,  v.  R.  R.  Comm.,  137  Wis.  80;  117  N.  W. 
846;  State,  etc.,  v.  Phelvs,  144  Wis.  1;  128  N.  W.  1041. 
The  expounder  is  to  ''look  to  the  whole  and  every  part 
of  the  law,  to  the  intent  apparent  from  the  whole,  to 
the  subject-matter,  to  the  effects  and  consequences,  to 
the  reason  and  spirit,  and  thereby  ascertain  the  ruling 
idea  present"  in  the  lawgiving  body's  mind  at  the 
time  of  the  enactment,  and  then,  so  far  as  such  idea  can 
reasonably  be  spelled  out  of  the  enactment,  give  effect 
to  it  though  it  violates  the  letter.  Wisconsin  Industrial 
School  for  Girls  v.  Clark  County,  103  Wis.  651,  659; 
79  N.  W.  422. 

True,  "the  Constitution  is  a  very  human  document" 
in  the  sense  that  it  is  a  collection  of  words  recognizing, 
characterizing  and  guaranteeing  the  natural  rights  of 
man — all  that  are  essential  to  public  welfare  in  the  social 
state,  but  not  so  in  the  sense  of  creating  such  rights. 
The  right  to  life,  to  liberty,  to  happiness,  to  equahty 
one  with  another,  are  not  of  human  creation.  They 
are  of  divine  origin,  though  by  human  instrumentality 
some  one  or  more  of  them  might  be  taken  away.  It  is 
to  prevent  that,  in  the  main,  the  Constitution  was 
framed.  So  anything  not  expressly  prohibited  which 
reasonably  conserves  those  God-given  rights,  is  within 
its  saving  grace.    Anything  which  clearly  or  materially 


700    Bradbury's  workmen's  compensation  law 

Wisconsin 

impairs  or  destroys  any  one  of  them  is  condemned  by 
it.  It  were  better  to  inculcate  the  idea  that  it  is  not 
subject  to  change  with  the  change  of  times  and  condi- 
tions, though  such  new  conditions,  by  logical  process 
may  well  be  the  deciding  factor  as  to  whether  legislative 
means,  resorted  to  for  a  particular  end,  are  within  or 
without  the  unchangeable  constitutional  principles. 
Manifestly  it  must  have  been  the  latter  conception 
of  the  Constitution  which  so  inspired  statesmen  of  the 
first  century  of  the  republic  with  veneration  for  it. 
That  might  well  have  inspired  Webster  to  love  it,  'to 
have  a  profound  passion  for  it,'  to  'cherish  it  day  and 
night,'  to  'live  on  its  healthful  saving  influence,'  and 
to  '  trust  never,  never  to  cease  to  heed  it  until '  he  should 
'  go  to  the  grave  of  his  fathers, '  to  '  earnestly  desire  not 
to  outlive  it.'"  It  is  good  to  draw  inspiration  from 
those  lofty  sentiments.  I  would  not  by  word  or  deed, 
to  any  extent  give  rise  to  the  thought  that  the  ancient 
dignity  of  our  system,  in  judicial  conception  here,  has 
changed. 

At  no  period  has  appreciation  of  the  great  work  of  the 
fathers  been  more  important  than  now.  We  need  to  sit 
anew,  in  thought,  at  their  feet — revive  knowledge  that 
the  result  was  wrought  by  a  body  of  men — representa- 
tives of  the  great  seats  of  learning  of  the  English- 
speaking  race  of  two  hemispheres,  and  otherwise  men 
of  broad  experience,  many  of  whom  had  been  students 
of  all  Federal  governments  of  all  prior  ages  in  prepara- 
tion for  the  special  task — as  the  historian  declared,  "the 
goodliest  fellowship  of  lawgivers  whereof  this  world  has 
record" — a  body  dominated  by  specialists  inspired  "by 
ennobling  love  for  their  fellow  men"  and  the  thought 
that  they  wrought,  not  for  their  age  alone,  but  for  the 


CONSTITUTIONAL   DECISIONS  701 

Wisconsin 

ages  to  come,  and,  so,  sought  to  avoid  the  infirmities 
of  previous  systems  of  government  by  the  people,  by 
carefully  providing  that  no  change  in  letter  or  spirit 
should  occur  except  in  a  particular  and  most  deliber- 
ate and  conservative  way. 

Appreciating  that  the  report  of  this  case  will  be  widely 
read  and  commented  upon  within  and  without  the 
field  of  judicial  administration,  I  particularly  desire  to 
avoid  creation  of,  or  administering  to,  false  impressions 
respecting  the  dignity  of  the  abolished  defenses  and 
the  responsibility  of  courts  for  their  existence. 

True,  such  defenses  are  of  judicial  origin,  but  not  as 
that  term,  without  explanation,  might  be  understood 
by  laymen.  They  are  so  in  the  same  sense  that  a  large 
part  of  the  law,  upon  which  rights  and  remedies  depend, 
is  of  such  creation.  Nevertheless,  all  such  is  as  much 
the  law  of  this  State,  to  be  respected  by  the  courts,  as 
any  part  of  the  Constitution  or  any  act  of  the  legislature. 
It  did  not  originate  with  the  courts  of  our  age  or  cen- 
tury. It  has  not  been  within  the  competency  of  this 
court  at  any  time  to  change  it.  The  defenses  in  question 
became  a  part  of  the  law  of  the  mother  country  through 
its  judicial  administration  long  before  the  Revolution. 
The  law  of  such  country,  so  far  as  adaptable  to  our 
conditions  here,  was  adopted  when  our  independent 
government  was  formed,  and  became  the  common  law 
of  this  country.  It  was  in  full  force  in  the  territory  of 
Wisconsin  when  our  State  was  admitted  into  the  Union. 
All  officers  were  sworn  to  maintain  it — that  part  relat- 
ing to  the  law  of  negligence  as  well  as  the  rest — and 
were  bound  to  do  so  with  as  much  fidelity  as  if  incor- 
porated into  the  written  law.  When  the  Constitution 
was  adopted  the  unwritten  law  was  substantially  given 


i 

702    Bradbury's  workmen's  compensation  law 

Wisconsin 

the  cast  of  written  law  and  as  such  firmly  entrenched 
as  fundamental,  subject  to  legislative  change,  by  §  13, 
article  14,  of  the  Constitution  in  these  words:  ''Such 
parts  of  the  common  law  as  are  now  in  force  in  the 
Territory  of  Wisconsin,  not  inconsistent  with  this  Con- 
stitution, shall  be  and  continue  part  of  the  law  of  this 
State  until  altered  or  suspended  by  the  legislature." 

Every  judge  of  every  court  has  been  sworn  to  main- 
tain the  common  law  as  thus  intrenched  in  our  system 
till  changed  by  the  legislature.  So  from  the  viewpoint 
of  the  present,  the  law  of  negligence — including  the  de- 
fenses in  question — does  not  lose  in  dignity  when  com- 
pared with  an  act  of  the  legislature,  because  ages  ago 
it  had  judicial  origin.  It  was,  as  we  have  seen,  with 
deliberation  adopted  by  the  people  when  they  or- 
ganized our  state  government.  No  court  in  our  time 
has  had  competency,  we  repeat,  to  change  or  create  or 
destroy  in  that  field.  Power  in  that  regard  was  expressly 
reserved  to  the  legislature.  It  has  been  free  to  act  in  the 
matter,  within  such  reasonable  limits  as  not  to  violate 
guaranteed  rights,  for  over  sixty  years,  while  the  courts 
have  been  powerless  to  do  more  than  to  determine, 
to  the  best  of  their  ability,  the  law  as  fundamentally 
adopted,  or  subsequently  changed,  by  the  lawmaking 
power,  and  apply  it. 

Under  the  power  reserved  to  the  legislature  as  afore- 
said, it  was  competent  for  it  to  abolish  the  defenses  in 
question,  and  to  do  it  in  such  a  way  as  to  create  induce- 
ment for  employers  to,  voluntarily,  become  parties  to 
the  new  system  designed  to  better  conserve  human 
life  and  human  happiness.  Call  the  method  "consti- 
tutional coercion,"  if  thought  best.  That  casts  no  dis- 
credit upon  the  method,  for  where  coercion  is  necessary 


CONSTITUTIONAL   DECISIONS  703 

Washington 

coercion  is  legitimate,  no  guaranteed  rights  being  in- 
fringed upon. 

It  is  needless  to  add  that  I  heartily  endorse  all  said 
in  the  court's  opinion  regarding  the  importance  of  the 
legislation  which  has  received  approval.  May  it  be 
the  beginning  of  a  well  rounded  out  constitutional 
system  making  every  one  who  consumes  any  product 
of  labor  for  hire  pay  his  proportionate  amount  of  the 
cost  of  the  creation  representing  the  personal  injury 
misfortunes  of  those  whose  hands  have  enabled  him 
to  secure  the  objects  of  human  desire,  thus  minimizing 
the  sufferings  which  are  the  natural  incidents  of  in- 
dustry and  should  be  borne,  so  far  as  they  represent 
pecuniary  sacrifice,  by  the  mass  of  mankind  whose  de- 
sires are  administered  to  by  such  industry. 


State  ex  rel.  Davis  Smith  Co.  v.  C.  W.  Clausen  as 
State  Auditor 

(00  Wash.  000;  117  Pac.  Rep.  1101) 

Constitutional  law;  Workmen's  Compensation  Act;  liability 
without  fault;  police  power;  invalidity  of  portion  of  act  as  af- 
fecting entire  statute;  classifying  industries;  class  legislation; 
uniform  taxation ;  trial  by  jury. 

1.  The  test  of  the  validity  of  a  law  which  creates  a  liability 
without  fault  is  not  found  in  the  inquiry:  Does  it  do  an 
objectionable  thing?  But  is  found  rather  in  the  inquiry: 
Is  there  no  reasonable  ground  to  believe  that  pubUc  safety, 
health  or  general  welfare  is  promoted  thereby? 

2.  The  legislature  cannot  declare  a  particular  industry  com- 
monly engaged  in  by  the  people,  to  be  unlawful,  which 


704    Bradbury's  workmen's  compensation  law 

Washington 

under  all  circumstances,  must  necessarily  be  harmless  and 
innocent;  but  it  can  regulate  and  control  and  prohibit  any 
industry,  however  innocent  it  may  have  been  at  its  incep- 
tion, whenever  it  becomes  a  menace  to  the  employes  en- 
gaged in  it,  the  people  surrounding  it,  or  to  any  consider- 
able number  of  people  at  large,  no  matter  from  whatsoever 
cause  the  menace  may  arise.  This  it  does  under  the  police 
power. 

3.  As  the  act  in  question  has  a  reasonable  relation  to  the. 
protection  of  the  public  health,  morals,  safety  and  welfare, 
it  will  not  be  set  aside  because  it  may  incidentally  deprive 

,  some  person  of  his  property  without  fault  or  take  the 
property  of  one  person  to  pay  the  obligations  of  another. 

4.  That  portion  of  the  act  which  permits  certain  sections  to 
stand  even  though  others  are  declared  to  be  invalid  does 
not  render  the  act  unconstitutional. 

5.  Classifying  industries  for  the  purpose  of  collecting  pre- 
miums and  distributing  compensation  does  not  render  the 
act  invalid  as  class  legislation. 

6.  The  act  is  not  invalid  as  creating  taxation  which  is  not 
uniform. 

7.  The  statute  is  not  unconstitutional  as  infringing  the  right 
of  trial  by  jury. 

En  Banc.  Original  proceeding  by  the  State,  on  the 
relation  of  the  Davis-Smith  Company  against  C.  W. 
Clausen,  as  state  auditor,  to  compel  the  issuance  of  a 
warrant  on  the  state  treasurer  in  payment  of  an  obliga- 
tion incurred  by  the  Industrial  Insurance  Department. 
Writ  issued. 

W.  V.  Tanner  (Harold  Preston  and  Geo.  A.  Lee,  of 
counsel),  for  plaintiff. 

Denman  &  Fishburne  (Graves,  Krizer  &  Graves,  of 
counsel),  for  defendant. 


CONSTITUTIONAL   DECISIONS  705 

Washington 

FULLERTON,  J. : 

This  is  an  original  proceeding  in  mandamus,  brought 
by  the  relator  to  compel  the  state  auditor  to  issue  a 
warrant  on  the  state  treasurer  in  payment  of  an  obli- 
gation incurred  by  the  industrial  insurance  department. 
The  application  was  in  the  form  requir'ed  by  the  statute 
governing  the  practice  in  such  cases,  and  sets  forth 
facts  which,  on  their  face,  show  that  the  applicant  is 
entitled  to  the  warrant  demanded.  The  auditor  de- 
murred generally  to  the  application,  and  at  the  hearing 
his  counsel  argued  that  the  act  purporting  to  authorize 
the  expenditure  for  which  the  warrant  was  demanded 
was  unconstitutional  and  void. 

It  was  suggested  at  the  argument  that  the  question 
of  the  constitutionality  of  the  act  could  not  be  raised 
by  the  auditor  in  this  form  of  proceeding,  but  to  do  so 
is  in  accord  with  the  practice  in  this  State.  In  State 
ex  ret.  Olmstead  v.  Mudgett,  21  Wash.  99;  57  Pac.  351, 
the  relator  sought  by  mandamus  to  compel  the  county 
treasurer  of  Spokane  to  collect  an  assessment  levied 
to  pay  the  cost  of  a  street  improvement,  and,  on  the 
demurrer  of  the  treasurer  to  the  application  for  the 
writ,  we  inquired  into  the  constitutionality  of  the  act 
authorizing  the  assessment  to  be  made.  To  the  same 
effect  are  State  ex  rel.  Port  Townsend  v.  Clausen,  40 
Wash.  95;  82  Pac.  187,  and  Hindman  v.  Boyd,  42  Wash. 
17;  84  Pac.  609.  In  the  latter  case  it  was  acknowledged 
that  the  authorities  on  the  question  were  in  conflict; 
but  it  was  said  that  the  preferable  rule  was  with  the 
cases  holding  that  the  question  could  be  thus  raised. 
On  principle  the  ruling  seems  to  be  sound.  If  it  be  true 
that  an  act  of  the  legislature  authorizing  the  disburse- 
ment of  public  money  is  unconstitutional,  to  inquire 
45 


706    Bradbury's  workmen's  compensation  law 

Washington 

into  it  on  the  objection  of  an  officer  having  in  charge 
such  disbursement  may  save  an  expenditure  that  would 
be  otherwise  lost  to  the  State  were  the  court  to  await 
the  suggestion  of  the  question  by  some  private  litigant 
injuriously  affected  by  the  Act.  There  is  no  merit  in 
the  objection  that  the  officer  is  without  interest  in  the 
proceeding.  He  is  charged  with  the  duty  of  conserving 
the  public  funds,  and  consequently  must  be  held  to 
have  an  interest  in  any  proceeding  which  directly  tends 
to  that  end. 

The  act  thought  to  be  unconstitutional  by  the  auditor 
is  the  act  of  the  legislature  of  March  14, 1911,  commonly 
known  as  the  "Workmen's  Compensation  Act."  Laws 
of  1911,  p.  345.  The  act  is  of  too  great  length  to  be  set 
forth  here  in  full ;  but  the  following  epitome  of  its  several 
provisions  will  give  an  understanding  of  its  salient 
features,  and  of  the  questions  involved  on  this  hearing : 

Section  1  contains  a  declaration  of  the  policy  of  the 
act.  It  recites  that  the  common-law  system  governing 
remedies  of  workmen  against  employers  for  injuries 
received  in  hazardous  employments  are  inconsistent 
with  modern  industrial  conditions;  that  in  practice 
such  remedies  have  proven  economically  unwise  and 
unfair;  that  their  administration  has  produced  the  re- 
sult that  little  of  the  cost  thereof  to  the  employer  has 
reached  the  workmen,  and  that  little,  only  at  a  great 
expense  to  the  public;  that  the  remedy  to  the  indi- 
vidual workman  is  uncertain,  slow  and  inadequate; 
that  injuries  in  such  employments  formerly  occasional 
have  become  frequent  and  inevitable;  that  the  welfare 
of  the  State  depends  upon  its  industries,  and  even 
more  upon  the  welfare  of  its  wage  workers.  And  it 
thereupon  declares  that  the  State  of  Washington,  exer- 


CONSTITUTIONAL   DECISIONS  707 

Washington 

cising  its  sovereign  powers,  withdraws  all  phases  of 
the  premises  from  private  controversies  and  provides 
sure  and  certain  relief  for  workmen  injured  in  extra- 
hazardous work,  and  their  families  and  dependents, 
regardless  of  questions  of  fault,  to  the  exclusion  of 
"every  other  remedy,  proceeding  or  compensation, 
except  as  otherwise  provided  in  this  act."  It  thereupon 
abolishes  civil  actions  and  civil  causes  of  action  for 
personal  injuries  incurred  in  extra-hazardous  employ- 
ments, and  the  jurisdiction  of  the  courts  thereon,  ex- 
cept as  in  the  act  provided. 

Section  2  enumerates  what  the  legislature  deems 
extra-hazardous  employments.  It  is  provided,  how- 
ever, that  if  there  be  found  to  be,  or  if  there  subse- 
quently arise,  any  hazardous  employments  not  enu- 
merated, the  same  shall  nevertheless  come  within  the 
provisions  of  the  act,  and  the  rate  of  contribution  to 
the  accident  fund  to  be  exacted  from  such  employments 
shall  be  fixed  by  the  department  therein  created  until 
the  legislature  itself  shall  have  acted  thereon.  The 
enumeration  includes  all  classes  of  business  and  emploj''- 
ments  in  which  machinery  is  employed,  whether  con- 
ducted by  corporations  or  by  individuals,  and  whether 
they  are  affected  with  a  public  interest  or  are  purely 
of  a  private  nature. 

Section  3  defines  certain  of  the  words  and  terms 
used  in  the  act.  Concerning  the  word  ''workman"  is 
the  following:  ''Workman  means  every  person  in  this 
State,  who,  after  September  30,  1911,  is  engaged  in 
the  employment  of  an  employer  carrying  on  or  con- 
ducting any  of  the  industries  scheduled  or  classified 
in  §  4,  whether  by  way  of  manual  labor  or  otherwise, 
and  whether  upon  the  premises  or  at  the  plant,  or,  he 


708    Bradbury's  workmen's  compensation  law 

Washington 

being  in  the  course  of  his  employment,  away  from  the 
plant  of  his  employer:  Provided,  however,  that  if  the 
injury  to  a  workman  occurring  away  from  the  plant  of 
his  employer  is  due  to  the  negligence  or  wrong  of  an- 
other not  in  the  same  employ,  the  injured  workman,  or 
if  death  result  from  the  injury,  his  widow,  children,  or 
dependents,  as  the  case  may  be,  shall  elect  whether  to 
take  under  this  act  or  seek  a  remedy  against  such  other, 
such  election  to  be  in  advance  of  any  suit  under  this 
section;  and  if  he  take  under  this  act,  the  cause  of  action 
against  such  other  shall  be  assigned  to  the  State  for 
the  benefit  of  the  accident  fund;  if  the  other  choice  is 
made,  the  accident  fund  shall  contribute  only  the  de- 
ficiency, if  any,  between  the  amount  of  recovery  against 
such  third  person  actually  collected,  and  the  compen- 
sation provided  or  estimated  by  this  act  for  such  case. 
Any  such  cause  of  action  assigned  to  the  State  may 
be  prosecuted,  or  compromised  by  the  department,  in 
its  discretion.  Any  compromise  by  the  workman  of 
any  such  suit,  which  would  leave  a  deficiency  to  be 
made  good  out  of  the  accident  fund,  may  be  made  only 
with  the  written  approval  of  the  department.  Any 
individual  employer  or  any  member  or  officer  of  any 
corporate  employer  who  shall  be  carried  upon  the  pay 
roll  at  a  salary  or  wage  not  less  than  the  average  salary 
or  wage  named  in  such  pay  roll  and  who  shall  be  in- 
jured, shall  be  entitled  to  the  benefit  of  this  act  as  and 
under  the  same  circumstances  as  and  subject  to  the 
same  obligations  as  a  workman." 

Section  4  contains  a  schedule  of  contributions.  It 
recites  that,  in  so  much  as  industry  should  bear  the 
greater  proportion  of  the  burden  of  the  costs  of  its 
accidents,  each  employer  shall,  prior  to  January  15  of 


CONSTITUTIOiSTAL  DECISIONS  709 

Washington 

each  year,  pay  into  the  state  treasury,  in  accordance 
with  a  schedule  provided,  a  sum  equal  to  a  percentage 
of  his  total  pay  roll  of  that  year.  Then  follows  a  classi- 
fication of  the  different  industries  and  the  rate  per 
centum  each  several  class  shall  be  required  to  pay;  the 
amounts  varying  as  the  legislature  deemed  the  risk  of 
injury  therefrom  varied,  and  the  greater  hazard  con- 
tributing the  larger  percentage.  The  fund  created  is 
termed  the  ''accident  fund,"  and  it  is  provided  that 
it  shall  be  devoted  exclusively  to  the  purposes  specified 
in  the  act.  A  scheme  is  provided  for  replenishing  the 
fund  in  case  an  amount  collected  shall  be  insufficient 
to  meet  the  demands  upon  it.  It  is  also  provided: 
"If  a  single  establishment  or  work  comprises  several 
occupations  listed  in  this  section  in  different  risk  classes, 
the  premium  shall  be  computed  according  to  the  pay 
roll  of  each  occupation  if  clearly  separable;  otherwise 
an  average  rate  of  premium  shall  be  charged  for  the 
entire  establishment,  taking  into  consideration  the 
number  of  employes  and  the  relative  hazards.  If  an 
employer  besides  employing  workmen  in  extrahazard- 
ous employment  shall  also  employ  workmen  in  employ- 
ments not  extrahazardous  the  provisions  of  this  act 
shall  apply  only  to  the  extrahazardous  departments 
and  employments  and  the  workmen  employed  therein. 
In  computing  the  pay  roll  the  entire  compensation  re- 
ceived by  every  workman  employed  in  extrahazardous 
employment  shall  be  included,  whether  it  be  in  form 
of  salary,  wage,  piecework,  overtime,  or  any  allowance 
in  the  way  of  profit-sharing,  premium  or  otherwise,  and 
whether  payable  in  money,  board,  or  otherwise." 

Section  5  contains  the  compensation  schedule.     It 
provides  that  each  workman  who  shall  be  injured, 


710    Bradbury's  workmen's  compensation  law 

Washington 

whether  upon  the  premises  or  at  the  plant,  or  being  in 
the  course  of  his  employment  away  from  the  plant  of 
his  employer,  or  his  family  or  dependents  in  case  of  the 
death  of  the  workman,  shall  receive  out  of  the  accident 
fund  compensation  in  accordance  with  the  schedule 
provided,  and  except  as  in  the  act  otherwise  provided 
such  compensation  shall  be  in  lieu  of  any  and  all  rights 
of  action  whatsoever  against  any  person  whomsoever. 
This  schedule  provides  for  monthly  payments  to  de- 
pendents of  the  workman  in  case  the  injury  results  in 
death,  varying  according  to  their  number  and  degree 
of  relationship,  and  to  the  workman  direct  in  case  the 
injury  results  only  in  disability;  the  amount  varying 
according  to  the  proportion  the  extent  of  such  dis- 
ability bears  to  a  fixed  maximum. 

Section  6  relates  to  intentional  injuries  and  the  status 
of  minors  engaged  in  hazardous  employments.  It  is 
provided  that,  if  injury  or  death  results  to  a  workman 
from  the  deliberate  intention  of  the  workman  himself 
to  produce  such  injury  or  death,  no  compensation  shall 
be  made  either  to  the  workman  or  his  dependents  out 
of  the  accident  fund.  If,  however,  the  injury  or  death 
results  to  a  workman  from  the  deliberate  intention  of 
his  employer,  such  workman,  or,  in  case  of  his  death,  a 
widow,  widower,  child,  or  dependent  of  the  workman, 
shall  have  the  privilege  to  take  under  the  act,  and  shall 
also  have  a  cause  of  action  against  the  employer,  as  if 
the  act  had  not  been  enacted,  for  any  excess  of  damage 
over  the  amount  received,  if  receivable  under  the  act. 
A  minor  working  at  an  age  legally  permitted  under  the 
laws  of  the  State  shall  be  deemed  sui  juris  for  the  pur- 
poses of  the  act,  and  no  other  person  shall  have  any 
cause  of  action  or  right  to  compensation  for  his  injury. 


CONSTITUTIONAL   DECISIONS  711 

Washington 

Section  7  provides  for  converting  the  monthly  pay- 
ments into  corresponding  lump  sums  according  to  the 
American  mortahty  tables.  Section  8  provides  penalties 
for  defaulting  employers.  Section  9  relates  to  injuries 
caused  by  the  absence  of  safeguards  required  by  statute. 

Section  10  exempts  awards  made  under  it  from  assign- 
ment, or  from  seizure  under  legal  proceedings. 

Section  11  provides  that  no  employer  of  workmen 
shall  exempt  himself  from  the  burden  or  waive  the 
benefits  of  the  act  by  any  contract,  agreement,  rule,  or 
regulation,  and  that  any  such  contract,  agreement,  rule 
or  regulation  shall  be  pro  tanto  void. 

Section  12  relates  to  the  filing  of  claims;  §  13  to  medi- 
cal examinations;  §  14  to  the  notice  required  of  the 
happening  of  accidents;  §  15  to  an  inspection  of  any 
employer's  books.  Section  16  provides  a  penalty  for 
misrepresentation  as  to  the  amount  of  the  pay  roll. 
Section  17  relates  to  public  contract  work.  Section  18 
contains  provisions  relating  to  interstate  and  intrastate 
commerce,  and  §  19  provides  that  the  provisions  of  the 
act  may  be  adopted  by  employers  and  employes  engaged 
in  nonhazardous  employments. 

Section  20  relates  to  court  reviews.  It  provides  that 
any  employer,  workman,  beneficiary,  or  person  feeling 
aggrieved  at  any  decision  of  the  department  created 
to  administer  the  terms  of  the  act  affecting  his  interest 
may  have  the  same  reviewed  by  a  proceeding  for  that 
purpose  in  the  nature  of  an  appeal,  initiated  in  the 
Superior  Court  of  the  county  of  his  residence,  in  so  far 
as  such  decision  rests  upon  questions  of  fact  or  of  the 
proper  application  of  the  provisions  of  the  act;  "it 
being  the  intent  that  matters  resting  in  the  discretion 
of  the  department  shall  not  be  subject  to  review."    It 


712      BRADBURY^S   WORKMEN'S   COMPENSATION   LAW 

Washington 

is  provided  further  that  the  appeal  shall  be  informal 
and  summary.  No  bond  shall  be  required,  and  any 
decision  of  the  Superior  Court  may  be  referred  to  the 
Supreme  Court  for  review  according  to  existing  laws 
applicable  to  other  civil  causes.  The  calling  of  a  jury 
is  within  the  discretion  of  the  court,  except  that,  in 
cases  occurring  under  §§  9,  15  and  16,  of  the  act,  each 
party  shall  be  entitled  to  a  trial  by  jury  on  demand. 

Section  21  vests  the  administration  of  the  act  in  a 
department  to  be  known  as  the  "Industrial  Insurance 
Department,"  to  consist  of  three  commissioners  to  be 
appointed  by  the  Governor.  It  is  provided  that  a 
decision  of  any  question  arising  under  the  act  concurred 
in  by  two  commissioners  shall  be  deemed  the  decision 
of  the  department,  and  each  member  thereof  is  given 
power  to  issue  subpoenas  requiring  the  attendance  of 
witnesses  and  the  production  of  books  and  documents. 

Section  22  relates  to  the  salary  of  the  commissioners, 
and  §  23  to  the  appointment  of  deputies  and  assistants. 
Section  24  further  defines  the  duties  of  the  commis- 
sioners in  relation  to  the  administration  of  the  act. 
Section  25  relates  to  medical  examinations,  and  §  26 
to  the  manner  in  which  funds  appropriated  to  the  use 
of  the  department  shall  be  disbursed. 

Section  27  provides : ''  If  any  employer  shall  be  adjudi- 
cated to  be  outside  the  lawful  scope  of  this  act,  the  act 
shall  not  apply  to  him  or  his  workman,  or  if  any  work- 
man shall  be  adjudicated  to  be  outside  the  lawful  scope 
of  this  act  because  of  remoteness  of  his  work  from  the 
hazard  of  his  employer's  work,  any  such  adjudication 
shall  not  impair  the  validity  of  this  act  in  other  respects, 
and  in  every  such  case  an  accounting  in  accordance 
with  the  justice  of  the  case  shall  be  had  of  moneys 


CONSTITUTIONAL   DECISIONS  713 

Washington 

received.  If  the  provisions  of  §  4  of  this  act  for  the 
creation  of  the  accident  fund,  or  the  provisions  of  this 
act  making  the  compensation  to  the  workman  provided 
in  it  exclusive  of  any  other  remedy  on  the  part  of  the 
workman  shall  be  held  invalid  the  entire  act  shall  be 
thereby  invalidated  except  the  provisions  of  §  31,  and 
an  accounting  according  to  the  justice  of  the  case  shall 
be  had  of  moneys  received.  In  other  respects  an  ad- 
judication of  invalidity  of  any  part  of  this  act  shaU 
not  affect  the  validity  of  the  act  as  a  whole  or  any  other 
part  thereof." 

Section  29  appropriates  out  of  the  general  fund  in 
the  state  treasury  the  sum  of  $150,000,  to  be  known 
as  an  "administration  fund,"  out  of  which  the  salaries, 
traveling,  and  office  expenses  of  the  department  shall 
be  paid,  together  with  all  the  expenses  of  administration 
of  the  accident  fund;  and  out  of  the  accident  fund  is 
appropriated  $1,500,000  to  be  appUed  to  the  purposes 
for  which  such  fund  is  applicable.  The  remaining  sec- 
tions relate  to  the  administration,  and  define  and  limit 
the  effect  and  operation  of  the  act,  and  need  no  special 
reference  to  their  contents. 

The  foregoing  summary  makes  clear  the  theory  and 
purpose  of  the  act.  It  is  founded  on  the  basic  principle 
that  certain  defined  industries  called  in  the  act  extra- 
hazardous should  be  made  to  bear  the  financial  losses 
sustained  by  the  workmen  engaged  therein  through 
personal  injuries,  and  its  purpose  is  to  furnish  a  remedy 
that  will  reach  every  injury  sustained  by  a  workman 
engaged  in  any  of  such  industries,  and  make  a  sure 
and  certain  award  therefor,  bearing  a  just  proportion 
to  the  loss  sustained,  regardless  of  the  manner  in  which 
the  injury  was  received.    With  the  economic  questions 


714    Bradbury's  workmen's  compensation  law 

Washington 

thus  suggested,  the  auditor's  learned  counsel  object 
only  to  the  wisdom  of  the  scheme  formulated.  They 
concede  that  the  evil  is  one  calling  for  a  remedy,  and 
direct  their  arguments  solely  against  this  particular 
act.  In  our  discussion  we  shall  confine  ourselves  to 
the  questions  thus  suggested,  noticing  the  economic 
questions  only  incidentally. 

The  act  is  challenged  as  unconstitutional  on  four 
distinct  grounds:  (1)  That  it  violates  §  3  of  article  1  of 
the  state  constitution,  and  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States,  which  provide 
that  no  person  shall  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law;  (2)  that  it  violates 
§  12  of  article  1  of  the  state  constitution,  which  provides 
that  no  law  shall  be  passed  granting  to  any  citizen, 
class  of  citizens,  or  corporations,  other  than  municipal, 
privileges  or  immunities  which,  upon  the  same  terms, 
shall  not  equally  belong  to  all  citizens  or  corporations; 
and  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States,  which  provides  for  the  equal  pro- 
tection of  the  laws;  (3)  that  it  violates  §§  1  and  2  of 
article  7  of  the  state  constitution,  which  provide  that 
property  shall  be  taxed  according  to  its  value  in  money 
and  that  all  taxation  shall  be  equal  and  uniform;  and 
(4)  that  it  violates  §  21  of  article  1  of  the  state  constitu- 
tion, which  provides  that  the  right  of  trial  by  jury  shall 
remain  inviolate.  But,  while  we  shall  discuss  the  ques- 
tions suggested  under  the  several  divisions  as  here  set 
out,  it  is  obvious  that  no  very  logical  segregation  of 
the  argument  can  be  thus  made,  as  many  of  the  reasons 
advanced  for  or  against  the  act  under  one  particular 
division  are  equally  applicable  to  one  or  more  of  the 
others.  ,  Any  different  arrangement,  however,  seems 


CONSTITUTIONAL   DECISIONS  715 

Washington 

to  be  at  the  sacrifice  of  clearness,  and  we  pass  therefore 
directly  to  the  first  objection  stated. 

It  is  with  regret  that  we  are  unable  to  set  forth  at 
length  counsel's  argument  on  this  branch  of  the  case, 
as  any  abbreviation  of  it  is  at  the  expense  of  its  cogency 
and  force.  To  do  so,  however,  would  unduly  lengthen 
this  opinion.  The  argument  is  based  on  two  funda- 
mental ideas:  The  one,  that  the  act  creates  a  liability 
without  fault ;  and,  the  other,  that  it  takes  the  property 
of  one  employer  to  pay  the  obligations  of  another.  It 
must  be  conceded  that  these  contentions  have  a  basis 
in  fact,  and  that  they,  on  first  impression,  constitute 
a  persuasive  argument  against  the  validity  of  the  act. 
Since  there  is  exacted  from  every  employer  of  labor 
engaged  in  one  or  more  of  the  industries  termed  hazard- 
ous a  certain  fixed  sum  based  upon  his  pay  roll,  which 
is  to  be  used  to  compensate  employes  working  in  such 
hazardous  employments  who  receive  personal  injuries, 
regardless  of  the  question  whether  the  injury  was  be- 
cause of  the  fault  of  the  employer  or  of  the  negligence 
of  the  employe,  it  can  be  said  that  some  part  of  the  sum 
so  collected  will  be  paid  out  on  injuries  in  which  the 
employer  is  without  fault;  and,  furthermore,  since 
every  such  employer  is  liable  to  make  the  payments 
whether  or  not  any  of  his  own  workmen  are  injured, 
and  since  an  employer  is  liable  under  the  common  law 
for  an  injury  to  his  own  workmen  only,  it  can  also  be 
said  that  by  this  act  one  employer  is  held  liable  for  the 
obligations  of  another. 

But  these  conditions  do  not  furnish  an  absolute  test 
of  the  validity  of  the  act.  In  the  statute  books  of  the 
several  States  are  many  statutes  held  constitutional 
by  the  courts  where  liabiUty  is  created  without  fault, 


716      BRADBURY^S  WORKMEN^S   COMPENSATfON   LAW 

Washington 

and  where  the  property  of  one  person  is  taken  to  pay 
the  obligations  of  another,  and  this  where  no  compen- 
sation is  made  to  the  person  who  is  thus  made  Uable 
or  whose  property  is  thus  taken,  other  than  perhaps 
the  bestowal  upon  him  of  some  privilege.  The  test  of 
the  yalidity  of  such  a  law  is  not  found  in  the  inquiry: 
Does  it  do  the  objectionable  things?  But  is  found  rather 
in  the  inquiry:  Is  there  no  reasonable  ground  to  be- 
lieve that  the  public  safety,  health,  or  general  welfare 
is  promoted  thereby?  The  legislature  cannot,  of  course, 
without  violating  this  clause  of  the  Constitution,  de- 
clare a  particular  industry,  commonly  engaged  in  by 
the  people,  to  be  unlawful  which,  under  all  circum- 
stances, must  necessarily  be  harmless  and  innocent; 
but  it  can  regulate  and  control  and  prohibit  any  in- 
dustry, however  innocent  it  may  have  been  in  its  in- 
ception, whenever  it  becomes  a  menace  to  the  em- 
ployes engaged  in  it,  the  people  surrounding  it,  or  to 
any  considerable  number  of  the  people  at  large,  no 
matter  from  whatsoever  cause  the  menace  may  arise. 
This  it  does  under  the  police  power — "the  power  in- 
herent in  every  sovereignty,  *  *  *  the  power  to  govern 
men  and  things."  It  is  unnecessary  to  discuss  the 
origin,  nature,  or  extent  of  this  power.  It  is  sufficient 
to  say  that,  by  means  of  it,  the  legislature  exercises  a 
supervision  over  matters  affecting  the  common  weal 
and  enforces  the  observance  by  each  individual  member 
of  society  of  duties  which  he  owes  to  others  and  the 
community  at  large.  The  possession  and  enjoyment 
of  all  rights  are  subject  to  this  power.  Under  it  the 
State  may  "prescribe  regulations  promoting  the  health, 
peace,  morals,  education,  and  good  order  of  the  people, 
and  to  legislate  so  as  to  increase  the  industries  of  the 


CONSTITUTIONAL   DECISIONS  717 

Washington 

State,  develop  its  resources,  and  add  to  its  welfare  and 
prosperity."  In  fine,  when  reduced  to  its  ultimate  and 
final  analysis,  the  police  power  is  the  power  to  govern. 
It  is  not  meant  here  to  be  asserted  that  this  power  is 
above  the  Constitution,  or  that  everything  done  in  the 
name  of  the  police  power  is  lawfully  done.  It  is  meant 
only  to  be  asserted  that  a  law  which  interferes  with 
personal  and  property  rights  is  valid  only  when  it  tends 
reasonably  to  correct  some  existing  evil  or  promote 
some  interest  of  the  State,  and  is  not  in  violation  of  any 
direct  and  positive  mandate  of  the  Constitution.  The 
clause  of  the  Constitution  now  under  consideration 
was  intended  to  prevent  the  arbitrary  exercise  of  power, 
or  undue,  unjust,  and  capricious  interference  with  per- 
sonal rights ;  not  to  prevent  those  reasonable  regulations 
that  all  must  submit  to  as  a  condition  of  remaining  a 
member  of  society.  In  other  words,  the  test  of  a  police 
regulation,  when  measured  by  this  clause  of  the  Con- 
stitution, is  reasonableness,  as  contradistinguished  from 
arbitrary  or  capricious  action. 

The  authorities,  as  we  view  them,  abundantly  sup- 
port the  foregoing  principles.  Of  statutes  upheld  by 
the  courts  which  can  be  said  to  create  liabihty  without 
fault  and  take  the  property  of  one  person  to  pay  the 
obligations  of  another,  the  most  conspicuous  examples 
are,  perhaps,  §§  4588  and  4803  of  the  Revised  Statutes 
of  the  United  States,  which  provide : 

*'Sec.  4585.  There  shall  be  assessed  and  collected  by 
the  collectors  of  customs  at  the  ports  of  the  United 
States,  from  the  master  or  owner  of  every  vessel  of  the 
United  States  arriving  from  a  foreign  port,  or  of  every 
registered  vessel  employed  in  the  coasting  trade,  and 
before  such  vessel  shall  be  admitted  to  entry,  the  sum 


718    Bradbury's  workmen's  compensation  law 


Washington 


of  forty  cents  per  month  for  each  and  every  seaman 
who  shall  have  been  employed  on  such  vessel  since  she 
was  last  entered  at  any  port  of  the  United  States;  such 
sum  such  master  or  owner  may  collect  and  retain  from 
the  wages  of  such  seamen." 

*'Sec.  4803.  The  several  collectors  of  the  customs 
shall  respectively  deposit,  without  abatement  or  reduc- 
tion, the  sums  collected  by  them  under  the  provisions 
of  law  imposing  a  tax  upon  seamen  for  hospital  purposes, 
with  the  nearest  depositary  of  public  moneys,  and  shall 
make  returns  of  the  same,  with  proper  vouchers, 
monthly,  to  the  Secretary  of  the  Treasury,  upon  forms 
to  be  furnished  by  him.  All  such  moneys  shall  be  placed 
to  the  credit  of  '  the  fund  for  the  relief  of  sick  and  dis- 
abled seamen;'  of  which  fund  separate  accounts  shall 
be  kept  in  the  treasury.  Such  fund  is  appropriated 
for  the  expenses  of  the  marine-hospital  service,  and 
shall  be  employed,  under  the  direction  of  the  Secretary 
of  the  Treasury,  for  the  care  and  relief  of  sick  and  dis- 
abled seamen  employed  in  registered,  enrolled  and 
licensed  vessels  of  the  United  States."  U.  S.  Comp.  St. 
1901,  p.  3322. 

This  statute  clearly  does  everything  that  is  charged 
against  the  statute  at  bar.  It  creates  liability  without 
fault,  since  it  obligates  the  master  or  owner  of  every 
vessel  of  the  United  States  to  pay  into  a  given  fund, 
controlled  by  the  government,  a  fixed  sum  for  the 
benefit  of  sick  and  disabled  seamen,  regardless  of  the 
fact  whether  or  not  the  vessel  of  the  master  or  owner 
making  the  payment  has  any  sick  or  disabled  seamen 
who  take  advantage  of  the  fund ;  and  it  takes  the  prop- 
erty of  one  to  pay  the  obligations  of  another,  since  the 
fund  is  disbursed  in  the  cure  of  sick  and  disabled  Amer- 


CONSTITUTIONAL   DECISIONS  719 

Washington 

ican  seamen  generally,  regardless  of  the  fact  whether  or 
not  the  expense  of  their  cure  exceeds  the  sum  paid  in 
by  the  master  or  owner  of  the  vessel  from  which  they 
came.  Whatever  may  be  said  as  to  the  foundation  of 
the  UabiUty  of  the  master  or  the  owner  of  a  vessel,  or 
the  vessel  itself,  to  answer  for  the  expenses  of  the  cure 
of  sick  and  disabled  seamen  while  in  service  on  the  ship, 
the  foundation  of  this  liability  is  purely  statutory,  and, 
if  the  objection  that  is  made  to  the  present  statute  were 
sufficient  to  condemn  it,  the  statute  is  in  violation  of 
the  Fifth  Amendment  to  the  Constitution  of  the  United 
States.  The  statute  had  its  inception  in  the  act  of 
Congress  of  July  16,  1798,  Chapter  77,  1  Stat.  606,  and 
was  on  the  statute  books  for  nearly  100  years,  during 
which  time  it  was  continuously  enforced.  It  is  true 
our  attention  has  been  called  to  no  case  where  the 
statute  was  directly  attacked;  but  there  are  numerous 
cases  in  which  it  has  been  specifically  mentioned  and 
given  force,  and  it  would  seem  that,  if  it  were  thought  in- 
imical to  the  Constitution,  it  would  not  have  escaped  the 
attention  of  the  astute  counsel  whose  client's  interests 
were  adversely  affected  by  it.  Buckley  v.  Brown,  Fed. 
Cas.  No.  2,092;  Reed  v.  Canfield,  Fed.  Cas.  No.  11,641; 
Peterson  v.  The  Chandos  (D.  C),  4  Fed.  Rep.  645;  Holt 
V.  Cummings,  102  Pa.  212,  48  Am.  Rep.  199.  See,  also, 
3  Ops.  Attys.  Gen.  (U.  S.)  683;  13  Ops.  Attys.  Gen. 
(U.  S.)  330. 

Statutes  making  railroad  corporations  absolutely 
liable,  without  regard  to  negligence,  for  injiu-ies  to  prop- 
erty caused  by  fires  escaping  from  their  locomotive 
engines,  are  clearly  statutes  creating  liability  without 
fault,  yet  these  statutes  have  been  upheld  by  all  the 
courts  of  the  States  in  which  they  have  been  enacted,  as 


720    Bradbury's  workmen's  compensation  law 

Washington 

well  as  by  the  Supreme  Court  of  the  United  States. 
Chapman  v.  Atlantic  &  St.  Lawrence  R.  R.  Co.,  37  Me. 
92;  Sherman  v.  Maine  Cent.  R.  R.  Co.,  86  Me.  422;  30 
Atl.  69;  Hooksett  v.  Concord  R.  R.  Co.,  38  N.  H.  242; 
Smith  V.  Boston  &  Maine  R.  R.  Co.,  63  N.  H.  25;  Lyman 
V.  Boston  &  Worcester  R.  Corp.,  4  Cush.  (Mass.)  288; 
Pierce  v.  Worcester  &  Nashua  R.  R.  Co.,  105  Mass.  199; 
Rodemacher  v.  Milwaukee  &  St.  P.  R.  R.  Co.,  41  Iowa, 
297;  20  Am.  Rep.  592;  Mathews  v.  St.  Louis  &  San 
Francisco  R.  R.  Co.,  121  Mo.  298;  24  S.  W.  591;  25  L.  R. 
A.  161;  Emerson  v.  Gardiner,  8  Kan.  452;  Jensen  v. 
South  Dakota  Cent.  R.  R.  Co.,  25  S.  D.  506;  127  N.  W. 
650;  St.  Louis  &  San  Francisco  R.  R.  Co.  v.  Mathews, 
165  U.  S.  1;  17  Sup.  Ct.  243;  41  L.  Ed.  611;  Atchison, 
T.  &  S.  F.  R.  R.  Co.  V.  Matthews,  174  U.  S.  96;  19  Sup. 
Ct.  609;  43  L.  Ed.  909.  Other  statutes  are  those  pro- 
viding that  any  landlord  who  knowingly  leases  his 
premises  for  saloon  purposes  shall  be  liable  for  losses 
resulting  from  intoxication  caused  by  the  sale  of  liquor 
by  his  lessee.  Such  a  statute  was  formerly  in  force  in 
this  State,  and  was  given  effect  by  this  court.  Delfel  v. 
Hanson,  2  Wash.  194;  26  Pac.  220;  Burkman  v.  Jamieson, 
25  Wash.  606;  66  Pac.  48.  And  in  Bertholf  v.  O'Reilly, 
74  N.  Y.  509;  30  Am.  Rep,  323,  the  constitutionality 
of  a  like  statute  was  maintained  in  an  opinion  by  Judge 
Andrew^s  renowned  for  its  ability  and  learning.  In 
the  course  of  his  opinion,  the  learned  judge  noted  the 
fact  that  the  liability  of  the  landlord  could  not  be  sus- 
tained on  the  theory  that  such  liability  was  a  condition 
of  a  privilege  granted  by  the  statute,  but  rested  the 
decision  on  the  principle  that  the  State,  under  its  police 
power,  could  impose  upon  the  landlord  liability  for  the 
acts  of  his  tenants.    In  the  course  of  the  opinion  this 


CONSTITUTIONAL   DECISIONS  721 

Washington 

language  was  used:  ''And  the  act  of  1873  is  not  invalid 
because  it  creates  a  right  of  action  and  imposes  a  lia- 
biUty  not  known  to  the  common  law.  There  is  no  such 
limit  to  legislative  power.  The  legislature  may  alter 
or  repeal  the  common  law.  It  may  create  new  offenses, 
enlarge  the  scope  of  civil  remedies,  and  fasten  responsi- 
bility for  injuries  upon  persons  against  whom  the  com- 
mon law  gives  no  remedy.  We  do  not  mean  that  the 
legislature  may  impose  upon  one  man  liability  for  an 
injury  suffered  by  another,  with  which  he  had  no  con- 
nection. But  it  may  change  the  rule  of  the  common 
law,  which  looks  only  to  the  proximate  cause  of  the 
mischief,  in  attaching  legal  responsibility,  and  allow 
a  recovery  to  be  had  against  those  whose  acts  con- 
tributed, although  remotely,  to  produce  it.  *  *  *  The 
liability  imposed  upon  the  landlord  for  the  acts  of  the 
tenant  is  not  a  new  principle  in  legislation.  His  liability 
only  arises  when  he  has  consented  that  the  premises 
may  be  used  as  a  place  for  the  sale  of  liquors.  He 
selects  the  tenant,  and  he  may,  without  violating  any 
constitutional  provision,  be  made  responsible  for  the 
tenant's  acts  connected  with  the  use  of  the  leased 
property." 

Statutes  imposing  a  liability  upon  fire  insurance 
agents,  based  upon  the  amount  of  the  insurance  effected 
by  them,  for  the  benefit  of  a  fund  to  care  for  and  cure 
sick  and  injured  firemen,  have  been  upheld  in  the  States 
of  New  York  and  Illinois.  Fire  Department  v.  Noble, 
3  E.  D.  Smith  (N.  Y.),  440;  Fire  Department  v.  Wright, 
3  E.  D.  Smith  (N.  Y.),  453;  Exempt  Fireman's  Fund  v. 
Roome,  29  Hun  (N.  Y.),  391,  394;  Firemen's  Benevolent 
Assn.  V.  Lounsbury,  21  111.  511;  74  Am.  Dec.  115. 
Clearly  these  are  statutes  creating  Uability  without 
46 


722    Bradbury's  workmen's  compensation  law 

Washington 

fault.  A  similar  statute  relating  to  agents  of  foreign 
fire  insurance  companies  was  upheld  in  Wisconsin. 
Fire  Department  v.  Helfenstein,  16  Wis.  136. 

The  statute  of  Nebraska  makes  a  railroad  company 
liable  in  damages  for  injuries  sustained  by  a  passenger 
regardless  of  the  question  of  negligence  on  the  part  of 
the  company,  except  where  the  injury  is  caused  by  the 
passenger's  criminal  negligence,  or  by  his  violation  of 
some  express  rule  of  the  company,  actually  brought  to 
his  attention.  This  statute  was  upheld  against  a  chal- 
lenge on  the  ground  that  it  violated  the  due  process  of 
law  clauses  of  the  state  and  Federal  constitutions,  by 
the  state  court,  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Zer- 
necke,  59  Neb.  689;  82  N.  W.  26;  55  L.  R.  A.  610,  and 
by  the  Supreme  Court  of  the  United  States  in  Chicago, 
R.  L,  etc.,  Ry.  Co.  v.  Zernecke,  183  U.  S.  582;  22  Sup. 
Ct.  229;  46  L.  Ed.  339.  The  Supreme  Court  of  the 
United  States,  vindicating  the  statute  against  the  at- 
tack made  upon  it,  used  the  following  language:  "In 
Omaha  &  R.  V.  R.  Co.  v.  Chollette,  33  Neb.  143;  49 
N.  W.  1114,  the  words  of  the  statute  exempting  railroad 
companies  from  liability,  'where  the  injury  done  arose 
from  the  criminal  negligence  of  the  persons  injured,' 
were  defined  to  mean  'gross  negligence,'  'such  negli- 
gence as  would  amount  to  a  flagrant  and  reckless  dis- 
regard '  by  the  passenger  of  his  own  safety,  and  '  amount 
to  a  willful  indifference  to  the  injury  liable  to  follow.' 
This  definition  was  approved  in  subsequent  cases.  It 
was  also  approved  in  the  case  at  bar,  and  the  plaintiff 
in  error,  it  was  in  effect  declared,  was  precluded  from 
any  defense  but  that  of  negligence  as  defined,  or  that 
the  injury  resulted  from  the  violation  of  some  rule  of 
the  company  by  the  passenger  brought  to  his  actual 


CONSTITUTIONAL   DECISIONS  723 

Washington 

notice,  and  the  company,  as  we  have  said,  was  not  per- 
mitted to  introduce  evidence  that  the  derailment  of 
its  train  was  caused  by  the  felonious  act  of  a  third 
person.  The  statute,  thus  interpreted  and  enforced, 
it  is  asserted,  impairs  the  constitutional  rights  of  plain- 
tiff in  error.  The  specific  contention  is  that  the  com- 
pany is  deprived  of  its  defense,  and  not  only  declared 
guilty  of  negligence  and  wrongdoing  without  a  hearing, 
but  adjudged  to  suffer  without  wrongdoing,  indeed  even 
for  the  crimes  of  others,  which  the  company  could  not 
have  foreseen  or  have  prevented.  Thus  described,  the 
statute  seems  objectionable.  Regarded  as  extending 
the  rule  of  liability  for  injury  to  persons  which  the 
common  law  makes  for  the  loss  of  or  injury  to  things, 
the  statute  seems  defensible.  And  it  was  upon  this 
ground  that  the  Supreme  Court  of  the  State  defended 
and  vindicated  the  statute.  The  court  said :  '  The  legis- 
lation is  justifiable  under  the  police  power  of  the  State, 
so  it  has  been  held.  It  was  enacted'  to  make  railroad 
companies  insurers  of  the  safe  transportation  of  their 
passengers  as  they  were  of  baggage  and  freight;  and 
no  good  reason  is  suggested  why  a  railroad  company 
should  be  released  from  liability  for  injuries  received 
by  a  passenger  while  being  transported  over  its  line, 
while  the  corporation  must  respond  for  any  damages 
to  his  baggage  or  freight.'  Our  jurisprudence  affords 
examples  of  legal  liability  without  fault,  and  the  dep- 
rivation of  property  without  fault  being  attributable 
to  its  owner.  The  law  of  deodands  was  such  an  ex- 
ample. The  personification  of  the  ship  in  admiralty 
law  is  another.  Other  examples  are  afforded  in  the 
liability  of  the  husband  for  the  torts  of  the  wife— the 
liability  of  a  master  for  the  acts  of  his  servants.    In 


724    Bradbury's  workmen's  compensation  law 

Washington 

Missouri  Railway  Co.  v.  Mackey,  127  U.  S.  205;  8  Sup. 
Ct.  1161;  32  L.  Ed.  107,  a  statute  of  Kansas  abrogating 
the  common-law  rule  exempting  a  rnaster  from  liability 
to  a  servant  for  the  negligence  of  a  fellow  servant  was 
sustained  against  the  contention  that  such  statute 
violated  the  Fourteenth  Amendment  of  the  Constitu- 
tion of  the  United  States.  And  in  Minneapolis,  elc, 
Railway  Co.  v.  Herrick,  127  U.  S.  210;  8  Sup.  Ct.  1176; 
32  L.  Ed.  109,  a  statute  of  Iowa  which  extended  lia- 
bility for  the  'willful  wrongs,  whether  of  commission 
or  omission,'  of  the  '  agents,  engineers  or  other  employes ' 
of  railroad  companies,  was  vindicated  against  the  double 
attack  of  being  an  unjust  discrimination  against  railroad 
corporations  and  the  deprivation  of  property  without 
due  process  of  law." 

The  latest  illustration  of  such  a  statute  is  found 
in  the  Oklahoma  Depositors'  Guaranty  Law,  which  au- 
thorizes the  assessment  and  collection  of  a  certain  per 
centum  on  the  daily  average  deposit  of  each  and  every 
bank  organized  under  the  laws  of  the  State  as  a  fund 
to  pay  the  losses  caused  depositors  by  failing  and  in- 
solvent banks.  This  act  was  challenged  in  the  state 
court  on  the  ground  that  it  violated  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States, 
and  the  due  process  of  law  clause  of  the  state  constitu- 
tion, but  was  upheld  by  the  state  court,  and  on  writ 
of  error  to  the  Supreme  Court  of  the  United  States 
the  judgment  of  the  state  court  was  affirmed.  Noble 
State  Bank  v.  Haskell,  22  Okla.  48;  97  Pac.  590;  Noble 
State  Bank  v.  Haskell,  219  U.  S.  104;  31  Sup.  Ct.  186; 
55  L.  Ed.  000,  32  L.  R.  A.  (N.  S.)  1062.  Answering 
the  objection  that  the  act  takes  private  property  for  a 
private  use,  and  creates  a  liability  without  fault,  the 


CONSTITUTIONAL   DECISIONS  725 

Washington 

Supreme  Court  of  the  United  States  said:  ''The  sub- 
stance of  the  plaintiff's  argument  is  that  the  assessment 
takes  private  property  for  private  use  without  com- 
pensation. And  while  we  should  assume  that  the  plain- 
tiff would  retain  a  reversionary  interest  in  its  contribu- 
tion to  the  fund  so  as  to  be  entitled  to  a  return  of  what 
remained  of  it  if  the  purpose  were  given  up  (see  Receiver 
of  Danhy  Bank  v.  State  Treasurer,  39  Vt.  92,  98),  still 
there  is  no  denying  that  by  this  law  a  portion  of  its 
property  might  be  taken  without  return  to  pay  debts 
of  a  failing  rival  in  business.  Nevertheless,  notwith- 
standing the  logical  form  of  the  objection,  there  are 
more  powerful  considerations  on  the  other  side.  In 
the  first  place,  it  is  established  by  a  series  of  cases  that 
an  ulterior  public  advantage  may  justify  a  compara- 
tively insignificant  taking  of  private  property  for  what, 
in  its  immediate  purpose,  is  a  private  use.  Clark  v. 
Nash,  198  U.  S.  361;  25  Sup.  Ct.  676;  49  L.  Ed.  1085; 
Strickley  v.  Highland  Boy  Mining  Co.,  200  U.  S.  527, 
531 ;  26  Sup.  Ct.  301 ;  50  L.  Ed.  581 ;  Offield  v.  New  York, 
New  Haven  &  Hartford  R.  R.  Co.,  203  U.  S.  372;  27 
Sup.  Ct.  72;  51  L.  Ed.  231;  Bacon  v.  Walker,  204  U.  S. 
311,  315;  27  Sup.  Ct.  289;  51  L.  Ed.  499.  And,  in  the 
next,  it  would  seem  that  there  may  be  other  cases  beside 
the  everyday  one  of  taxation,  in  which  the  share  of 
each  party  in  the  benefit  of  a  scheme  of  mutual  protec- 
tion is  sufficient  compensation  for  the  correlative  burden 
that  it  is  compelled  to  assume.  See  Ohio  Oil  Co.  v. 
Indiana,  177  U.  S.  190;  20  Sup.  Ct.  576;  44  L.  Ed.  729. 
At  least,  if  we  have  a  case  within  the  reasonable  exercise 
of  the  poUce  power  as  above  explained,  no  more  need 
be  said." 

Illustrations  of  the  nature  and  all-pervading  extent 


72G    Bradbury's  workmen's  compensation  law 

Washington 

of  the  police  power  are  shown  somewhat  in  the  cases 
already  cited.  Other  illustrations  abound  almost  with- 
out number  in  the  decisions  of  the  state  and  Federal 
courts.  It  will  be  sufficient  for  our  purposes,  however, 
to  call  attention  to  a  few  of  those  which  most  clearly, 
as  we  believe,  illustrate  the  doctrine.  In  Lawton  v. 
Steele,  152  U.  S.  133;  14  Sup.  Ct.  499;  38  L.  Ed.  385, 
the  court  used  this  language:  ''The  extent  and  limits 
of  what  is  known  as  the  police  power  have  been  a  fruit- 
ful subject  of  discussion  in  the  appellate  courts  of  nearly 
every  State  in  the  Union.  It  is  universally  conceded 
to  include  everything  essential  to  the  public  safety, 
health,  and  morals,  and  to  justify  the  destruction  or 
abatement,  by  summary  proceedings,  of  whatever  may 
be  regarded  as  a  pubUc  nuisance.  Under  this  power 
it  has  been  held  that  the  State  may  order  the  destruc- 
tion of  a  house  falling  to  decay  or  otherwise  endanger- 
ing the  lives  of  passers-by;  the  demolition  of  such  as 
are  in  the  path  of  a  conflagration;  the  slaughter  of 
diseased  cattle;  the  destruction  of  decayed  or  unwhole- 
some food;  the  prohibition  of  wooden  buildings  in  cities; 
the  regulation  of  railways  and  other  means  of  public 
conveyance,  and  of  interments  in  burial  grounds;  the 
restriction  of  objectionable  trades  to  certain  localities; 
the  compulsory  vaccination  of  children;  the  confine- 
ment of  the  insane  or  those  afflicted  with  contagious 
diseases ;  the  restraint  of  vagrants,  beggai"s,  and  habitual 
drunkards;  the  suppression  of  obscene  publications  and 
houses  of  ill  fame;  and  the  prohibition  of  gambling 
houses  and  places  where  intoxicating  liquors  are  sold. 
Beyond  this,  however,  the  State  may  interfere  wherever 
the  public  interests  demand  it,  and  in  this  particular  a 
large  discretion  is  necessarily  vested  in  the  legislature 


CONSTITUTIONAL  DECISIONS  727 

Washington 

to  determine,  not  only  what  the  interests  of  the  public 
require,  but  what  measures  are  necessary  for  the  pro- 
tection of  such  interests." 

Again,  in  H olden  v.  Hardy,  169  U.  S.  366;  18  Sup.  Ct. 
383;  42  L.  Ed.  780,  it  was  said:  "An  examination  of 
both  these  classes  of  cases  under  the  Fourteenth  Amend- 
ment will  demonstrate  that,  in  passing  upon  the  vaUdity 
of  state  legislation  under  that  amendment,  this  court 
has  not  failed  to  recognize  the  fact  that  the  law  is,  to 
a  certain  extent,  a  progressive  science;  that  in  some 
of  the  States  methods  of  procedure,  which  at  the  time 
the  Constitution  was  adopted  were  deemed  essential 
to  the  protection  and  safety  of  the  people,  or  to  the 
liberty  of  the  citizen,  have  been  found  to  be  no  longer 
necessary;  that  restrictions  which  had  formerly  been 
laid  upon  the  conduct  of  individuals,  or  of  classes  of 
individuals,  had  proved  detrimental  to  their  interests; 
while,  upon  the  other  hand,  certain  other  classes  of 
persons,  particularly  those  engaged  in  dangerous  or 
unhealthful  employments,  have  been  found  to  be  in 
need  of  additional  protection.  Even  before  the  adop- 
tion of  the  Constitution,  much  had  been  done  toward 
mitigating  the  severity  of  the  common  law,  particularly 
in  the  administration  of  its  criminal  branch.  The  num- 
ber of  capital  crimes,  in  this  country  at  least,  had  been 
largely  decreased.  Trial  by  ordeal  and  by  battle  had 
never  existed  here,  and  had  fallen  into  disuse  in  Eng- 
land. The  earlier  practice  of  the  common  law,  which 
denied  the  benefit  of  witnesses  to  a  person  accused  of 
felony,  had  been  abolished  by  statute,  though,  so  far 
as  it  deprived  him  of  the  assistance  of  counsel  and 
compulsory  process  for  the  attendance  of  his  witnesses, 
it  had  not  been  changed  in  England.    But  to  the  credit 


728    Bradbury's  workmen's  compensation  law 

Washington 

of  her  American  colonies  let  it  be  said  that  so  oppressive 
a  doctrine  had  never  obtained  a  foothold  there.  The 
present  century  has  originated  legal  reforms  of  no  less 
importance.  The  whole  fabric  of  special  pleading, 
once  thought  to  be  necessary  to  the  elimination  of  the 
real  issue  between  the  parties,  has  crumbled  to  pieces. 
The  ancient  tenures  of  real  estate  have  been  largely 
swept  away,  and  land  is  now  transferred  almost  as 
easily  and  cheaply  as  personal  property.  Married 
women  have  been  emancipated  from  the  control  of 
their  husbands  and  placed  upon  a  practical  equality 
with  them  with  respect  to  the  acquisition,  possession, 
and  transmission  of  property.  Imprisonment  for  debt 
has  been  abolished.  Exemptions  from  execution  have 
been  largely  added  to,  and  in  most  of  the  States  home- 
steads are  rendered  incapable  of  seizure  and  sale  upon 
forced  process.  Witnesses  are  no  longer  incompetent 
by  reason  of  interest,  even  though  they  be  parties  to  the 
litigation.  Indictments  have  been  simplified,  and  an 
indictment  for  the  most  serious  of  crimes  is  now  the 
simplest  of  all.  In  several  of  the  States  grand  juries, 
formerly  the  only  safeguard  against  a  malicious  prosecu- 
tion, have  been  largely  abolished,  and  in  others  the  rule 
of  unanimity,  so  far  as  applied  to  civil  cases,  has  given 
way  to  verdicts  rendered  by  a  three-fourths  majority. 
This  case  does  not  call  for  an  expression  of  opinion  as 
to  the  wisdom  of  these  changes,  or  their  validity  under 
the  Fourteenth  Amendment,  although  the  substitution 
of  prosecution  by  information  in  lieu  of  indictment  was 
recognized  as  valid  in  Hurtado  v.  California,  110  U.  S. 
516;  4  Sup.  Ct.  Ill,  292;  28  L.  Ed.  232.  They  are  men- 
tioned only  for  the  purpose  of  calling  attention  to  the 
probability  that  other  changes  of  no  less  importance 


CONSTITUTIONAL   DECISIONS  729 

Washington 

may  be  made  in  the  future,  and  that,  while  the  cardinal 
principles  of  justice  are  immutable,  the  methods  by 
which  justice  is  administered  are  subject  to  constant 
fluctuation,  and  that  the  Constitution  of  the  United 
States,  which  is  necessarily  and  to  a  large  extent  inflexi- 
ble and  exceedingly  difficult  of  amendment,  should 
not  be  so  construed  as  to  deprive  the  States  of  the  power 
to  so  amend  their  laws  as  to  make  them  conform  to  the 
wishes  of  the  citizens  as  they  may  deem  best  for  the 
pubhc  welfare  without  bringing  them  into  conflict  with 
the  supreme  law  of  the  land." 

So  in  Nohle  State  Bank  v.  Haskell,  supra,  Mr.  Justice 
Holmes  said : ''  It  may  be  said  in  a  general  way  that  the 
police  powder  extends  to  all  the  great  public  needs. 
Camfield  v.  United  States,  167  U.  S.  518;  17  Sup.  Ct. 
864;  42  L.  Ed.  260.  It  may  be  put  forth  in  aid  of 
what  is  sanctioned  by  usage,  or  held  by  the  prevailing 
morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  public  wel- 
fare. Among  matters  of  that  sort  probably  few  would 
doubt  that  both  usage  and  preponderant  opinion  give 
their  sanction  to  enforcing  the  primary  conditions  of  suc- 
cessful commerce.  One  of  those  conditions  at  the 
present  time  is  the  possibiUty  of  payment  by  checks 
drawn  against  bank  deposits;  to  such  an  extent  do  checks 
replace  currency  in  daily  business.  If  then  the  legisla- 
ture of  the  State  thinks  that  the  public  welfare  requires 
the  measure  under  consideration,  analogy  and  principle 
are  in  favor  of  the  power  to  enact  it.  Even  the  primary 
object  of  the  required  assessment  is  not  a  private  benefit 
as  it  was  in  the  cases  above  cited  of  a  ditch  for  irriga- 
tion or  a  railway  to  a  mine,  but  it  is  to  make  the  cur- 
rency of  checks  secure,  and  by  the  same  stroke  to  make 


730    Bradbury's  workmen's  compensation  law 

Washington 

safe  the  almost  compulsory  resort  of  depositors  to 
banks  as  the  only  available  means  for  keeping  money 
on  hand.  The  priority  of  claim  given  to  depositors  is 
incidental  to  the  same  object  and  is  justified  in  the 
same  way.  The  power  to  restrict  liberty  by  fixing  a 
minimum  of  capital  required  of  those  who  would  engage 
in  banking  is  not  denied.  The  power  to  restrict  invest- 
ments to  securities  regarded  as  relatively  safe  seems 
equally  plain.  It  has  been  held,  we  do  not  doubt  rightly, 
that  inspections  may  be  required  and  the  cost  thrown 
on  the  bank.  See  Charlotte,  Columbia  &  Augusta  R.  R. 
Co.  V.  Gibbes,  142  U.  S.  386;  12  Sup.  Ct.  255;  35  L.  Ed. 
1051.  The  power  to  compel,  beforehand,  co-operation, 
and  thus,  it  is  believed,  to  make  a  failure  unlikely  and  a 
general  panic  almost  impossible,  must  be  recognized, 
if  government  is  to  do  its  proper  work,  unless  we  can 
say  that  the  means  have  no  reasonable  relation  to  the 
end.  Gundling  v.  Chicago,  177  U.  S.  183,  188;  20  Sup. 
Ct.  633;  44  L.  Ed.  725.  So  far  is  that  from  being  the 
case  that  the  device  is  a  familiar  one.  It  was  adopted 
by  some  States  the  better  part  of  a  century  ago,  and 
seems  never  to  have  been  questioned  until  now.  Re- 
ceiver of  Danby  Bank  v.  Stale  Treasurer,  39  Vt.  92; 
People  V.  Walker,  17  N.  Y.  502.  Recent  cases  going 
not  less  far  are  Lemieux  v.  Young,  211  U.  S.  489,  496; 
29  Sup.  Ct.  174;  53  L.  Ed.  295;  Kidd,  Daier  &  Pnce  Co. 
V.  Musselman  Grocer  Co.,  217  U.  S.  461;  30  Sup.  Ct. 
606;  54  L.  Ed.  839.  It  is  asked  whether  the  State  could 
require  all  corporations  or  all  grocers  to  help  to  guaran- 
tee each  other's  solvency,  and  where  we  are  going  to 
draw  the  line.  But  the  last  is  a  futile  question,  and  we 
will  answer  the  others  when  they  arise.  With  regard  to 
the  police  power,  as  elsewhere  in  the  law,  lines  are 


CONSTITUTIONAL   DECISIONS  731 

Washington 

pricked  out  by  the  gradual  approach  and  contact  of 
decisions  on  the  opposing  sides.  Hudson  County  Water 
Co.  V.  McCarter,  209  U.  S.  349,  355;  28  Sup.  Ct.  529; 
52  L.  Ed.  828.  It  will  serve  as  a  datum  on  this  side 
that  in  our  opinion  the  statute  before  us  is  well  within 
the  State's  constitutional  power,  while  the  use  of  the 
pubUc  credit  on  a  large  scale  to  help  individuals  in  busi- 
ness has  been  held  to  be  beyond  the  hne.  Loan  Associa- 
tion V.  Topeka,  20  Wall.  655;  22  L.  Ed.  455;  Lowell  v. 
Boston,  111  Mass.  454;  15  Am.  Rep.  39." 

It  is  argued,  however,  that  the  statutes  above  referred 
to  can  be  supported  on  principles  not  appUcable  to 
the  statute  before  us.  First,  it  is  said  that  the  statutes 
creating  absolute  liability  on  railroad  companies  for 
losses  caused  by  fires  from  their  locomotive  engines 
are  in  themselves  but  a  return  to  the  common  law  as 
it  originally  existed.  But  this  does  not  meet  the  objec- 
tion. At  the  time  the  common  law  became  a  rule  of 
action  for  the  American  States,  the  doctrine  that  negli- 
gence or  fault  of  some  kind  was  a  necessary  element 
of  liability  was  as  firmly  imbedded  in  it  as  was  any 
other  of  its  tenets,  and  to  create  liability  regardless  of 
negligence  is  now  as  fundamental  a  change  in  the  com- 
mon law  as  it  would  be  had  the  rule  always  remained 
as  it  now  is.  Again,  it  is  said  that  the  right  to  use  the 
agencies  of  fire  and  steam  in  the  movement  of  trains 
is  derived  from  legislation  by  the  State,  and  the  State 
can,  for  that  reason,  prescribe  such  limitations  upon 
and  annex  such  conditions  to  its  use  as  it  may  deem 
fit  and  necessary  to  protect  from  injury  those  who 
come  in  contact  with  it.  But  the  premise  here  assumed 
is  not  strictly  accurate.  The  use  of  fire  and  steam  to 
propel  trains  is  not  in  itself  unlawful.    On  the  contrary, 


732    beadbury's  workmen's  compensation  law 

Washington 

it  is  as  much  a  natural  right  as  is  the  right  to  propel 
them  by  any  other  means  or  to  engage  in  any  other 
lawful  enterprise.  Hence  the  power  to  regulate  and 
interfere  with  the  right  must  come  from  some  source 
other  than  the  inherent  unlawfulness  of  the  act  itself. 
It  is  not  meant  to  be  said,  of  course,  that  the  State, 
when  it  grants  a  charter  to  a  railroad  company  em- 
powering it  to  construct  and  operate  a  railroad  within 
its  boundaries,  may  not  annex  to  the  charter  such 
conditions  as  it  pleases.  But  that  is  not  the  question 
here.  The  question  is:  Whence  comes  the  power  to 
impose  these  additional  burdens  upon  a  railroad  cor- 
poration by  legislative  fiat  after  it  has  received  its 
charter  and  has  constructed  and  is  operating  its  road 
thereunder?  Unless  the  Constitution  or  the  act  grant- 
ing the  charter  itself  expressly  reserves  such  right,  the 
legislature  cannot  materially  change  the  charters  of 
railroad  companies  after  it  has  once  granted  them. 
The  power  to  annex  additional  conditions  thereto  must 
therefore  be  found  in  some  other  power  than  the  one 
here  alluded  to.  Then,  again,  it  is  said  with  reference 
to  these  and  the  bank  guaranty  statutes  that  the  cor- 
porations named  therein  are  affected  with  a  public  in- 
terest, and  that  this  fact  renders  them  subject  to  regula- 
tions that  they  would  not  otherwise  be  subject  to.  But 
again  we  say  that  the  legislature,  because  of  this  public 
interest,  may  be  warranted  in  imposing  such  a  condi- 
tion as  a  precedent  right  to  engage  in  the  business  of 
railroading  or  banking,  but  it  furnishes  no  reason  for 
imposing  additional  conditions  after  the  business  has 
been  entered  upon  with  the  consent  of  the  State.  The 
property  of  such  institutions  is  private  property,  and 
its  ownership  is  as  secure  and  free  from  arbitrary  exac- 


CONSTITUTIONAL   DECISIONS  733 

Washington 

tions  as  is  the  property  invested  in  enterprises  of  a 
more  private  nature.  Of  the  statutes  making  the  land- 
lord liable  for  damages  caused  by  the  sale  of  intoxicating 
liquors  by  his  tenant,  it  is  said  that  the  traffic  is  unlaw- 
ful in  itself;  that  "whisky  is  an  outlaw,"  and  hence  the 
legislature,  if  it  permits  its  sale  at  all,  may  prescribe 
the  terms  upon  which  sales  shall  be  made.  But  here 
again  the  assumption  is  not  in  accord  with  the  fact. 
The  sale  of  liquor  was  not  unlawful  at  common  law. 
On  the  contrary,  it  has  been  said  by  as  high  an  au- 
thority as  the  Supreme  Court  of  the  United  States  that 
the  State  could  no  more  exclude  **its  importation  and 
sale  in  original  packages  without  the  consent  of  Con- 
gress than  it  could  exclude  the  sugar  of  Louisiana,  the 
cotton  of  South  Carolina,  the  wines  of  CaUfornia,  the 
hops  of  Washington,  the  tobacco  of  Maryland  and 
Connecticut,  or  the  products  natural  or  manufactured 
of  any  State."  Lyng  v.  Michigan,  135  U.  S.  161;  10 
Sup.  Ct.  725;  34  L.  Ed.  150.  It  refused  to  classify  in- 
toxicating liquors  with  rags  or  other  goods  infected 
with  disease,  or  with  cattle  or  meat  or  other  provisions 
which  from  their  condition  are  unfit  for  human  use  or 
consumption,  as  it  was  conceded  that  the  State  could 
prohibit  the  importation  and  use  of  these  in  any  form, 
with  or  without  the  consent  of  Congress.  It  seems  to 
us,  therefore,  that  it  cannot  be  successfully  controverted 
that  all  of  these  statutes  rest  upon  the  same  basic 
principle  on  which  the  statute  at  bar  rests;  that  is  to 
say,  they  have  their  foundation  in  the  poHce  power  of 
the  State. 

Nor  is  it  sufficient  to  exclude  the  industries  men- 
tioned in  the  act  before  us  from  the  operation  of  these 
principles  to  say  that  they  are  lawful  callings,  not  sub- 


734    Bradbury's  workmen's  compensation  law 

Washington 

ject  to  absolute  prohibition.  As  we  have  said  in  an- 
other place,  lawful  trades  and  businesses,  although 
private  in  their  nature,  are  subject  to  the  police  power, 
and  may  be  controlled  and  regulated  under  it  whenever 
the  welfare  of  the  State  requires  it.  This  is  well  illus- 
trated by  the  laws  of  our  own  State.  For  example, 
the  statute  requiring  employers  of  labor  to  pay  their 
employes  in  lawful  money;  the  statute  requiring  em- 
ployers of  female  help  in  stores  or  offices  to  provide 
each  of  them  with  a  chair  or  stool  on  which  to  rest  when 
their  duties  permit ;  the  statute  prohibiting  the  employ- 
ment of  females  in  any  mechanical  or  mercantile  estab- 
lishment, laundry,  hotel,  or  restaurant,  for  more  than 
ten  hours  in  any  one  day;  the  statute  limiting  the 
number  of  hours  an  employe  will  be  permitted  in  any 
one  day  to  work  underground  in  a  coal  mine;  the  statute 
requiring  machinery  in  factories,  mills,  and  workshops, 
the  openings  of  all  hoistways,  hatchways,  elevators, 
and  well-holes,  to  be  guarded;  the  statute  appointing  a 
commissioner  of  labor,  and  empowering  him  to  inspect 
mills  and  factories  and  charge  the  cost  thereof  to  the 
mill  or  factory  inspected — are  all  statutes  regulating 
lawful  trades  or  businesses  not  affected  with  public 
interests,  yet  each  and  all  of  them  have  been  upheld  and 
enforced  in  a  long  line  of  cases  by  this  court.  State  v. 
Buchanan,  29  Wash.  602;  70  Pac.  52;  59  L.  R.  A.  342; 
92  Am.  St.  Rep.  930;  Kirkham  v.  Wheeler-Osgood  Co., 
39  Wash.  415;  81  Pac.  869;  Shortall  v.  Puget  Sound 
Bridge  &  Dredging  Co.,  45  Wash.  290;  88  Pac.  212;  122 
Am.  St.  Rep.  899;  Hall  v.  West  &  Slade  Mill  Co.,  39 
Wash.  447;  81  Pac.  915;  Whelan  v.  Washington  Lumber 
Co.,  41  Wash.  153;  83  Pac.  98;  111  Am.  St.  Rep.  1006. 
The  Supreme  Court  of  the  United  States,  in  Sentell  v. 


CONSTITUTIONAL   DECISIONS  735 

Washington 

New  Orleans,  etc.,  Railroad  Co.,  166  U.  S.  698;  17  Sup. 
Ct.  693;  41  L.  Ed.  1169,  speaking  of  the  power  of  the 
State  to  interfere  with  private  property,  used  this 
language:  "That  a  State  in  a  bona  fide  exercise  of  its 
police  power,  may  interfere  with  private  property,  and 
even  order  its  destruction,  is  as  well  settled  as  any 
legislative  power  can  be,  which  has  for  its  objects  the 
welfare  and  comfort  of  the  citizen.  For  instance,  meats, 
fruits,  and  vegetables  do  not  cease  to  become  private 
property  by  their  decay;  but  it  is  clearly  within  the 
power  of  the  State  to  order  their  destruction  in  times 
of  epidemic,  or  whenever  they  are  so  exposed  as  to  be 
deleterious  to  the  public  health.  There  is  also  property 
in  rags  and  clothing;  but  that  does  not  stand  in  the 
way  of  their  destruction  in  case  they  become  infected 
and  dangerous  to  the  public  health.  No  property  is 
more  sacred  than  one's  home,  and  yet  a  house  may  be 
pulled  down  or  blown  up  by  the  public  authorities,  if 
necessary  to  avert  or  stay  a  general  conflagration,  and 
that,  too,  without  recourse  against  such  authorities  for 
the  trespass." 

The  power  to  regulate,  therefore,  applies  alike  to  all 
employments.  The  test  of  the  power  is  found  in  the 
effect  the  pursuit  of  the  calling  has  upon  the  public 
weal  rather  than  in  the  inherent  nature  of  the  calUng 
itself. 

In  Allgeyer  v.  Louisiana,  165  U.  S.  578;  17  Sup.  Ct. 
427;  41  L.  Ed.  832,  the  court,  referring  to  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United 
States,  said:  ''The  Hberty  mentioned  in  that  amend- 
ment means  not  only  the  right  of  the  citizen  to  be  free 
from  the  mere  physical  restraint  of  his  person,  as  by 
incarceration,  but  the  term  is  deemed  to  embrace  the 


736    Bradbury's  workmen's  compensation  law 

Washington 

right  of  the  citizen  to  be  free  in  the  enjoyment  of  all  his 
faculties;  to  be  free  to  use  them  in  all  lawful  ways;  to 
live  and  work  where  he  will;  to  earn  his  livelihood  by 
any  lawful  calling;  to  pursue  any  livelihood  or  avoca- 
tion, and  for  that  purpose  to  enter  into  all  contracts 
which  may  be  proper,  necessary  and  essential  to  his 
carrying  out  to  a  successful  conclusion  the  purposes 
above  mentioned." 

It  is  thought  the  act  at  bar  interferes  with  certain 
of  the  personal  rights  here  defined,  particularly  with 
the  right  of  contract,  and  is  for  that  reason  violative 
of  this  provision  of  the  Constitution.  But  it  is  recog- 
nized in  the  case  cited,  and  in  many  others,  that  these 
rights  are  not  absolute.  On  the  contrary,  it  has  been 
many  times  said  that  there  is  no  absolute  right  to  do 
as  one  wills,  pursue  any  calling  one  desires,  or  contract 
as  one  chooses;  that  the  term  ''liberty"  means  absence 
of  arbitrary  restraint,  not  immunity  from  reasonable 
regulations  and  prohibitions  imposed  in  the  interests 
of  the  community.  The  principle  was  thus  stated  in 
Frisbie  v.  United  States,  157  U.  S.  160;  15  Sup.  Ct.  586; 
39  L.  Ed.  657:  "A  second  objection,  insisted  upon  now 
as  it  was  by  demurrer  to  the  indictment,  is  that  the 
act  under  which  the  indictment  was  found  is  uncon- 
stitutional, because  interfering  with  the  price  of  labor 
and  the  freedom  of  contract.  This  objection  also  is 
untenable.  While  it  may  be  conceded  that,  generally 
speaking,  among  the  inalienable  rights  of  the  citizen 
is  that  of  the  liberty  of  contract,  yet  such  liberty  is 
not  absolute  and  universal.  It  is  within  the  undoubted 
power  of  government  to  restrain  some  individuals  from 
all  contracts,  as  well  as  all  individuals  from  some  con- 
tracts.   It  may  deny  to  all  the  right  to  contract  for 


CONSTITUTIONAL   DECISIONS  737 

Washington 

the  purchase  or  sale  of  lottery  tickets;  to  the  minor 
the  right  to  assume  any  obligations,  except  for  the 
necessaries  of  existence;  to  the  common  carrier  the 
power  to  make  any  contract  releasing  himself  from 
negligence;  and,  indeed,  may  restrain  all  engaged  in 
any  employriient  from  any  contract  in  the  course  of 
that  employment  which  is  against  public  policy.  The 
possession  of  this  power  by  government  in  no  manner 
conflicts  with  the  proposition  that,  generally  speaking, 
every  citizen  has  a  right  freely  to  contract  for  the 
price  of  his  labor,  services  or  property." 

Again,  in  the  case  of  Holden  v.  Hardy,  169  U.  S.  366; 
18  Sup.  Ct.  383;  42  L.  Ed.  780,  the  court,  holding  con- 
stitutional the  statute  of  the  State  of  Utah  fixing  the 
number  of  hours  a  workingman  should  be  permitted 
to  work  continuously  in  underground  mines,  used  this 
language:  "This  right  of  contract,  however,  is  itself 
subject  to  certain  limitations  which  the  State  may 
lawfully  impose  in  the  exercise  of  its  police  powers. 
While  this  power  is  inherent  in  all  governments,  it  has 
doubtless  been  greatly  expanded  in  its  application  dur- 
ing the  past  century,  owing  to  an  enormous  increase 
in  the  number  of  occupations  which  are  dangerous, 
or  so  far  detrimental  to  the  health  of  employes  as  to 
demand  special  precautions  for  their  well-being  and 
protection,  or  the  safety  of  adjacent  property.  While 
this  court  has  held,  notably  in  the  cases  of  Davidson  v. 
New  Orleans,  96  U.  S.  97;  24  L.  Ed.  616,  and  Yick  Wo  v. 
Hopkins,  118  U.  S.  356;  6  Sup.  Ct.  1064;  30  L.  Ed.  220, 
that  the  police  power  cannot  be  put  forward  as  an  ex- 
cuse for  oppressive  and  unjust  legislation,  it  may  be 
lawfully  resorted  to  for  the  purpose  of  preserving  the 
public  health,  safety,  or  morals,  or  the  abatement  of 
47 


738    Bradbury's  workmen's  compensation  law 

Washington 

public  nuisances,  and  a  large  discretion  'is  necessarily 
vested  in  the  legislature  to  determine  not  only  what 
the  interests  of  the  public  require,  but  what  measures 
are  necessary  for  the  protection  of  such  interests.' " 

So  in  State  v.  Buchanan,  29  Wash.  602;  70  Pac.  52; 
59  L.  R.  A.  342;  92  Am.  St.  Rep.  930,  this  court,  holding 
constitutional  the  act  limiting  the  number  of  hours 
women  could  be  required  to  work  in  one  day  in  mechani- 
cal and  mercantile  establishments,  said:  ''Law  is,  or 
ought  to  be,  a  progressive  science.  While  the  principles 
of  justice  are  immutable,  changing  conditions  of  society 
and  the  evolution  of  employment  make  a  change  in 
the  application  of  principles  absolutely  necessary  to  an 
intelligent  administration  of  government.  In  the  early 
history  of  the  law,  when  employments  were  few  and 
simple,  the  relative  conditions  of  the  citizen  and  the 
State  were  different,  and  many  employments  and  uses 
which  were  then  considered  inalienable  rights  have 
since,  from  the  very  necessity  of  changed  conditions, 
been  subjected  to  legislative  control,  restriction,  and 
restraint.  This  all  flows  from  the  old  announcement 
made  by  Blackstone  that  when  man  enters  into  society, 
as  a  compensation  for  the  protection  which  society 
gives  to  him,  he  must  yield  up  some  of  his  natural  rights, 
and,  as  the  responsibilities  of  the  government  increase, 
and  a  greater  degree  of  protection  is  afforded  to  the 
citizen,  the  recompense  is  the  yielding  of  more  individual 
rights.  Transportation  companies  are  now  controlled 
and  restricted,  where  a  few  years  ago  they  claimed 
the  right  to  transact  their  business  exactly  as  it  suited 
their  private  interests.  The  practice  of  medicine  is 
restricted  and  controlled.  Laws  against  quackery  and 
empiricism  are  enforced  without  question.    The  sale  of 


CONSTITUTIONAL   DECISIONS  739 

Washington 

liquor,  which  formerly  was  a  legitimate  business,  and 
which  the  citizen  had  a  right  to  enter  into,  as  he  did 
any  other  business,  without  any  restrictions,  has  now 
become  subject  to  the  control  of  the  State,  or  to  actual 
prohibition  at  the  will  of  the  State.  The  changing 
conditions  of  society  have  made  an  imperative  call 
upon  the  State  for  the  exercise  of  these  additional 
powers,  and  the  welfare  of  society  demands  that  the 
State  should  assume  these  powers,  and  it  is  the  duty 
of  the  court  to  sustain  them  whenever  it  is  found  that 
they  are  based  upon  the  idea  of  the  promotion  and 
protection  of  society.' 

If,  therefore,  the  act  in  controversy  has  a  reasonable 
relation  to  the  protection  of  the  public  health,  morals, 
safety  or  welfare,  it  is  not  to  be  set  aside  because  it 
may  incidentally  deprive  some  person  of  his  property 
without  fault  or  take  the  property  of  one  person  to  pay 
the  obligations  of  another.  To  be  fatally  defective  in 
these  respects,  the  regulation  must  be  so  utterly  un- 
reasonable and  so  extravagant  in  nature  and  purpose 
as  to  capriciously  interfere  with  and  destroy  private 
rights. 

That  the  statute  here  in  question  has  the  attribute 
of  reasonableness,  rather  than  that  of  capriciousness, 
seems  incontrovertible.  The  e\dl  it  seeks  to  remedy  is 
one  that  calls  loudly  for  action.  Accidents  to  workmen 
engaged  in  the  industries  enumerated  in  it  are  all  but 
inevitable.  It  seems  that  no  matter  how  carefully 
laws  for  the  prevention  of  accidents  in  such  industries 
may  be  framed,  or  how  rigidly  they  may  be  enforced, 
there  is  an  element  of  human  equation  that  enters  into 
the  problem  which  cannot  be  eliminated  and  which 
invariably   causes   personal   injuries   and   consequent 


740    Bradbury's  workmen's  compensation  law 

Washington 

financial  losses  to  workmen  engaged  therein.  Hereto- 
fore these  losses  have  been  borne  by  the  injured  work- 
men themselves,  by  their  dependents,  or  by  the  State 
at  large.  It  was  the  belief  of  the  legislature  that  they 
should  be  borne  by  the  industries  causing  them,  or,  per- 
haps more  accurately,  by  the  consumers  of  the  prod- 
ucts of  such  industries.  That  the  principle  thus  sought 
to  be  put  into  efTect  is  economically,  sociologically 
and  morally  sound,  we  think  must  be  conceded.  It 
is  so  treated  by  the  learned  counsel  who  have  filed 
briefs  in  support  of  the  auditor's  contentions;  it  is  so 
conceded  by  all  modern  statesmen,  jurists  and  economic 
writers  who  have  voiced  their  opinion  on  the  subject; 
and  the  principle  has  been  enacted  into  law  by  nearly 
all  of  the  civilized  countries  of  Europe,  by  Australia, 
by  New  Zealand,  by  the  Transvaal,  by  the  principal 
provinces  of  the  Dominion  of  Canada,  and  in  a  partial 
form  at  least  by  one  or  more  of  South  American  re- 
publics. Indeed,  so  universal  is  the  sentiment  that  to 
assert  to  the  contrary  is  to  turn  the  face  against  the 
enlightened  opinion  of  mankind.  The  common  law 
does  not  purport  to  afford  a  remedy  for  the  condition 
here  found  to  exist.  It  affords  relief  to  an  injured 
workman  in  only  a  limited  number  of  cases — cases  where 
the  injury  is  the  result  of  fault  on  the  part  of  the  em- 
ployer and  there  is  want  of  fault  on  the  part  of  the 
workman.  For  the  greater  number  of  injuries  traceable 
to  the  dangers  incident  to  industry,  no  remedy  at  all 
is  afforded.  The  act,  therefore,  having  in  its  support 
these  economic  and  moral  considerations,  is  not  un- 
constitutional for  the  reasons  suggested  upon  this 
branch  of  the  argument. 
Passing  to  the  second  objection,  it  is  well  settled 


CONSTITUTIONAL  DECISIONS  741 

Washington 

that  neither  the  clause  of  the  state  constitution  pro- 
hibiting class  legislation,  nor  the  clause  of  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United 
States  relating  to  the  equal  protection  of  the  laws,  takes 
from  the  State  the  power  to  classify  in  the  adoption  of 
police  regulations.  The  limitations  imposed  admit  of  a 
wide  discretion  in  this  respect,  and  avoid  only  what  is 
done  without  any  reasonable  basis ;  that  is,  such  regula- 
tions as  are  in  their  nature  arbitrary.  The  learned  coun- 
sel for  the  auditor  recognize  this  distinction  and  con- 
sequently do  not  attack  the  act  because  it  is  confined 
to  extrahazardous  occupations  as  its  field  of  regulation, 
but  complain  because  its  benefits  are  not  confined 
to  workmen  injured  while  engaged  in  such  occupa- 
tions. It  is  claimed  that  the  act  allows  workmen  em- 
ployed in  such  industries  the  benefit  of  the  act  when 
injured  outside  of  the  line  of  their  duties,  or  when  en- 
gaged in  the  business  of  the  concern  in  a  capacity  not 
affected  by  the  peculiar  hazards  of  the  business.  We 
have  quoted  enough  of  the  statute  to  show  that  it  is 
somewhat  obscure  in  these  respects,  but  we  are  not 
inclined  to  think  the  point  fatal  to  the  act,  even  though 
we  concede  counsel's  interpretation  of  it  to  be  the 
correct  one. 

In  §  27,  the  legislature  has  made  it  clear  that  it  did 
not  intend  the  provisions  relating  to  those  who  are  en- 
titled to  partake  of  its  benefits  to  be  so  far  an  integral 
part  of  the  act  that  it  could  not  be  eliminated  in  part 
without  destroying  the  act  in  its  entirety.  It  is  there 
expressly  provided  that  the  adjudication  of  invalidity 
of  any  part  of  the  act  shall  not  affect  the  validity  of  the 
act  as  a  whole  or  any  other  part  thereof.  This  means 
that  the  legislature  intended  the  act  to  be  enforced  as 


742    Bradbury's  workmen's  compensation  law 

Washington 

far  as  it  may  be  even  though  it  might  not  be  vaUd  in  its 
entirety.  It  was  competent  for  the  legislature  so  to 
provide.  Anything  it  could  have  eliminated  itself  and 
left  an  operative  act  can  be  eliminated  by  the  courts 
without  destroying  the  entire  act,  if  it  is  the  will  of  the 
legislature  that  the  remaining  parts  of  the  act  shall 
stand  after  such  elimination.  So  here,  if  it  be  true  that 
the  legislature  has  gone  too  far  in  this  direction,  and 
has  attempted  to  include  within  its  benefits  certain 
employes  who  cannot  be  included  without  including 
employes  generally,  these  can  be  omitted  in  the  ad- 
ministration of  the  act  without  the  necessity  of  nullify- 
ing the  entire  act.  But  whether  any  such  workmen  are 
so  improperly  included  we  shall  not  here  determine. 
The  question  can  best  be  met  when  it  arises  during  the 
course  of  the  act's  administration. 

Again,  it  is  said  that  the  act  violates  the  provisions 
relating  to  class  legislation  because  it  diverts  the  con- 
tributions exacted  from  the  numerous  industries  to  the 
relief  of  a  particular  class  of  injured  and  disabled 
workmen,  instead  of  applying  it  to  the  relief  of  in- 
jured workmen  generally  or  applying  it  to  the  use  of 
the  State  at  large.  But  to  divert  the  money  collected 
in  this  manner  to  a  special  use  is  one  of  the  preroga- 
tives of  legislation. 

The  right  of  the  State  to  regulate  any  form  of  industry 
arises  from  the  fact  that  its  pursuit  affects  injuriously 
the  health,  safety,  morals  or  welfare  of  the  persons 
engaged  in  it,  or  is  inimical  in  some  form  to  some  por- 
tion of  the  individuals  of  the  community.  It  is  not 
necessary  that  it  always  affect  injuriously  the  public 
at  large.  On  the  contrary,  it  may  be  regulated  if  it 
affects  injuriously  those  engaged  in  it,  or  those  brought 


CONSTITUTIONAL   DECISIONS  743 

Washington 

in  direct  contact  with  it,  even  though  its  pursuit  may- 
benefit  generally  the  people  of  the  State  at  large.  Nor 
is  there  any  particular  form  which  the  regulation  must 
take.  The  conduct  of  the  business  may  be  prohibited 
entirely  in  a  particular  place  or  in  a  particular  manner; 
its  pursuit  may  be  restricted  to  certain  hours  of  the 
day;  it  may  be  permitted  to  be  conducted  only  in  case 
protective  devices  are  used;  or  it  may  be  permitted  in 
certain  forms,  and  a  sum  of  money  exacted  from  the 
individuals  carrying  it  on  for  the  purpose  of  recom- 
pensing those  who  suffer  losses  because  thereof. 

So,  in  this  instance,  if  the  legislature  believed  that, 
to  permit  the  pursuit  of  the  industries  named  after  the 
present  manner  of  conducting  them  was  generally  for 
the  pubUc  good  in  spite  of  the  losses  the  method  of 
pursuit  entailed,  there  is  no  reason  why  it  should  not 
confine  its  regulations  to  compelHng  the  owners  and 
conductors  of  such  industries  to  create  a  fund  out  of 
which  the  losses  caused  thereby  should  be  made  good. 
That  legislation  in  this  form  is  not  class  legislation, 
nor  a  denial  to  ow^ners  of  property  of  the  equal  protec- 
tion of  the  laws,  is  well  sustained  by  authority. 

In  Jensen  v.  South  Dakota  Cent.  Ry.  Co.,  25  S.  D.  506; 
127  N.  W.  650,  the  court,  discussing  the  question,  used 
this  language:  "The  exercise  of  the  pohce  power  in  this 
class  of  cases  is  based  upon  the  ground  that,  w^here 
persons  are  engaged  in  a  calling  or  business  attended 
with  danger  to  other  persons  and  their  property,  then 
the  legislature  may  step  in  and  impose  conditions  upon 
the  exercise  of  such  calling  or  business  for  the  general 
good  and  welfare  of  society,  and  may  prescribe  the 
terms  on  which  such  dangerous  calling  or  business  will 
be  permitted  to  be  carried  on  by  persons  in  charge 


744    Bradbury's  workmen's  compensation  law 

Washington 

thereof,  whether  such  persons  happen  to  be  private 
individuals  or  railway  corporations.  The  fact  that 
such  legislative  exercise  of  the  police  power  applies 
alike  to  all  persons  and  all  corporations  engaging  in 
such  dangerous  calUng  or  business  relieves  it  from  the 
charge  and  contention  that  there  is  a  denial  of  equal 
protection  under  the  law  by  reason  of  such  enactments." 
In  Firemen's  Benevolent  Assn.  v.  Lounsbury,  21  111. 
511;  74  Am.  Dec.  115,  the  court  had  under  considera- 
tion a  statute  of  the  State  of  Illinois  which  created  a 
corporation  called  the  Firemen's  Benevolent  Associa- 
tion, and  required  every  insurance  agent  in  the  city  of 
Chicago  to  pay  to  the  association  a  fixed  percentage 
upon  the  amount  of  fire  insurance  premiums  collected 
by  him  per  year  from  fire  insurance  effected  upon  prop- 
erty in  the  city,  to  be  used  solely  for  the  relief  of  dis- 
tressed, sick,  injured,  or  disabled  firemen  and  their 
immediate  families.  Answering  the  objection  that  the 
act  was  void  as  class  legislation,  the  court  said:  "There 
is  nothing  to  be  found  in  the  Constitution  which  can 
be  held  to  inhibit  the  legislature  from  imposing  burdens, 
or  raising  money  from  citizens  of  the  State,  which  is 
not  for  the  direct  benefit  of  the  State,  and  is  never 
designed  to  belong  to  the  State.  To  deprive  the  legis- 
lature of  this  power  would  to  a  great  extent  destroy  its 
usefulness — while  it  would  to  a  certain  extent  deprive 
it  of  the  power  of  abuse,  it  would  destroy  its  power  to 
regulate  by  law  a  thousand  things,  which  the  public 
good  requires  should  be  regulated  by  law.  *  *  *  Let 
us  once  hold  that  the  legislature  could  not  compel  any 
citizen  to  submit  to  a  burden,  except  for  the  benefit 
of  the  State  aggregate,  or  for  some  subdivision  of  it, 
as  a  county,  city,  or  town,  or  to  pay  any  money  except 


CONSTITUTIONAL   DECISIONS  745 

Washington 

it  shall  go  into  the  State  or  some  subordinate  pubUc 
treasury,  and  we  should  soon  find  ourselves  on  the 
brink  of  anarchy  itself — we  should  tie  up  the  hands  of 
the  legislature,  it  is  true,  so  that  they  might  not  do  some 
evils  which  they  have  hitherto  had  the  power  of  doing; 
but  we  should  also  let  loose  upon  society  10,000  evils, 
which  in  every  well-regulated  community  it  has  always 
been  the  duty  of  the  legislature  to  suppress.  It  is  in 
the  exercise  of  this  indispensable  power  that  ferries, 
toll  bridges,  and  the  like  are  licensed  or  chartered.  The 
legislature,  finding  it  necessary  to  afford  special  en- 
couragement to  private  enterprise  to  erect  a  bridge  or 
a  ferry,  has  ever  exercised  the  power  of  imposing  a 
burden  on  some,  for  the  benefit  of  others.  Whoever 
doubted  the  right  of  the  legislature  to  charter  a  bridge 
and  to  require  all  persons  crossing  the  stream  within 
certain  limits,  to  pay  the  tolls,  whether  they  cross  on 
the  bridge  or  not?  It  is  the  exercise  of  the  same  power, 
which  fixes  the  fees  of  officers  for  the  perfoiTnance  of 
certain  services.  It  is  the  power  which  the  legislature 
possesses,  of  imposing  burdens  upon  certain  members 
of  the  community  who  are  supposed  to  be  benefited 
by  the  efforts  or  acts  of  certain  other  members  of  the 
community,  as  a  reward  or  compensation  for  such 
acts.  *  *  *  It  would  fill  a  volume  to  enumerate  all 
the  familiar  instances  of  the  exercise  of  this  power — a 
power  which  must  be  exercised  constantly  in  every 
civilized  community,  or  the  well-being  of  that  com- 
munity must  vitally  suffer." 

In  State  v.  Cassidy,  22  Minn.  312;  21  Am.  Rep.  765, 
the  court  sustained  an  act  which  required  the  vendors 
of  intoxicating  Uquors  to  pay  a  fixed  sum  per  annum 
into  the  state  treasury,  in  addition  to  the  usual  license 


746    Bradbury's  workmen's  compensation  law 

Washington 

fee,  as  a  fund  to  be  disbursed  by  a  state  commission 
in  the  creation  and  operation  of  a  state  asylum  for  the 
care  and  cure  of  inebriates.  The  court  in  its  opinion 
points  out  that  the  act  is  an  exercise  of  poHce  power, 
saying:  ''It  regards  the  traffic  as  one  tending  to  pro- 
duce intemperance,  and  as  hkely,  by  reason  thereof,  to 
entail  upon  the  State  the  expense  and  burden  of  pro- 
viding for  a  class  of  persons  rendered  incapable  of  self- 
support,  the  evil  influence  of  whose  presence  and  ex- 
ample upon  society  is  necessarily  injurious  to  the  pub- 
lic welfare  and  prosperity,  and  therefore  calls  for  such 
legislative  interposition  as  will  operate  as  a  restraint 
upon  the  business,  and  protect  the  community  from  the 
mischiefs,  evils,  and  pecuniary  burdens  flowing  from 
its  prosecution.  *  *  *  That  these  provisions  unmis- 
takably partake  of  the  nature  of  police  regulations, 
and  are  strictly  of  that  character,  there  can  be  no  doubt, 
nor  can  it  be  denied  that  their  expediency  or  necessity 
is  solely  a  legislative,  and  not  a  judicial,  question.  *  *  * 
Regarding  the  law  as  a  precautionary  measure,  intended 
to  operate  as  a  wholesome  restraint  upon  the  traffic, 
and  as  a  protection  to  society  against  its  consequent 
evils,  the  exacted  fee  is  not  unreasonable  in  amount, 
and  the  purpose  to  which  it  is  devoted  is  strictly  perti- 
nent and  appropriate.  It  could  not  be  questioned  but 
that  a  reasonable  sum  imposed  in  the  way  of  an  in- 
demnity to  the  State  against  the  expense  of  maintaining 
a  police  force  to  supervise  the  conduct  of  those  engaged 
in  the  business,  and  to  guard  against  the  disorders  and 
infractions  of  law  occasioned  by  its  prosecution,  would 
be  a  legitimate  exercise  of  the  police  power,  and  not 
open  to  the  objection  that  it  was  a  tax  for  the  purpose 
of  revenue,  and  therefore  unconstitutional.     Reclaim- 


CONSTITUTIONAL  DECISIONS  747 

Washington 

ing  the  inebriate,  restoring  him  to  society,  prepared 
again  to  discharge  the  duties  of  citizenship,  equally 
promotes  the  pubUc  welfare,  and  tends  to  the  accom- 
plishment of  Uke  beneficial  results,  and  it  is  difficult 
to  see  wherein  the  imposition  of  a  reasonable  Ucense  fee 
would  be  any  the  less  a  proper  exercise  of  this  power  in 
the  one  case  than  in  the  other.  The  purpose  to  which 
the  Ucense  fund  created  by  the  act  is  designated  is  more 
consonant  to  the  idea  of  regulating  the  traffic  and  pre- 
venting its  evils  than  is  the  case  under  the  general  U- 
cense  law,  which  devotes  the  fees  received  to  common 
school  purposes,  and  we  are  not  aware  that  any  ob- 
jection has  ever  been  urged  against  that  law  on  that 
account." 

A  statute  of  Kentucky  imposed  upon  all  dogs  a  tax  at 
a  fixed  sum  per  capita,  to  be  paid  by  their  owners,  for 
the  creation  of  a  fund  to  be  disbursed  to  sheep  growers 
whose  sheep  should  be  injured  or  destroyed  by  the 
ravages  of  dogs.  In  McGlone  v.  Womack,  129  Ky.  274; 
111  S.  W.  688;  17  L.  R.  A.  (N.  S.)  855,  this  statute  was 
challenged  by  a  number  of  owners  of  dogs  on  the  ground 
that  it  violated  the  state  constitution.  Answering  the 
objection  that  it  was  class  legislation  the  court  said: 
"Nor  do  we  think  the  act  is  inimical  to  that  portion  of 
§  3  of  the  Bill  of  Rights  which  provides:  '  *  *  *  And 
no  grant  of  exclusive,  separate  public  emoluments  or 
privileges  shall  be  made  to  any  man  or  set  of  men, 
except  in  consideration  of  pubfic  services.  *  *  *'  As 
we  view  it,  the  statute  does  not  confer  any  special 
privilege  on  the  owner  of  sheep.  It  merely  protects 
these  owners  from  the  destruction  of  their  property  by 
dogs.  It  is  the  duty  of  the  State  to  protect  every  citizen 
in  his  Ufe,  Uberty  and  property ;  and  it  certainly  is  within 


748    Bradbury's  workmen's  compensation  law 

Washington 

the  competency  of  the  legislature  to  exercise  the  police 
power  of  the  State  to  protect  all  property  against  the 
ravages  of  destructive  animals.  The  question  as  to  how 
this  is  to  be  done  and  what  property  is  to  be  so  protected 
is  a  matter  of  legislative  discretion.  Undoubtedly  the 
sheep  industry  is  a  most  important  one  to  the  whole 
State.  All  of  our  citizens  are  interested  in  any  industry 
which  supplies  the  market  with  wholesome  meat,  pro- 
vides means  of  obtaining  warm  and  comfortable  cloth- 
ing, and  at  the  same  time  furnishes  labor  to  the  other- 
wise unemployed.  It  is  only  necessary  to  allude  to 
this  phase  of  the  question.  The  importance  of  the  in- 
dustry as  a  whole  is  most  obvious.  It  is  equally  obvious 
that  sheep  are  peculiarly  liable  to  the  ravages  of  dogs. 
They  have  neither  the  fleetness  to  escape  nor  the  cour- 
age to  defend  themselves  from  attack,  and  their  silent 
suffering  enables  the  dog  to  prey  upon  them  without 
any  danger  that  the  owner  will  be  warned  of  the  de- 
struction of  his  property  by  the  outcry  of  the  dying 
animal.  *  *  *  The  fact  that  sheep  are  generally  killed 
at  night  when  it  is  impossible  to  ascertain  the  owner 
of  the  dog  committing  the  ravage  makes  it  necessary, 
if  protection  is  to  be  had  through  this  channel  at  all, 
that  each  owner  of  a  dog  should  be  required  to  contrib- 
ute a  small  amount  to  a  common  fund  dedicated  to 
the  remuneration  of  owners  of  sheep  killed  by  unknown 
dogs.  As  said  before,  this  is  simply  requiring  the 
owners  of  dogs  to  make  good  the  ravages  of  dangerous 
animals  kept  by  them;  and  no  citizen  has  just  cause  of 
complaint,  if  he  keeps  animals  destructive  to  the  prop- 
erty of  others,  that  he  is  required  to  make  good  the 
damages  done  by  them.  The  statute,  in  truth,  is  but  an 
enforcement  of  the  maxim.  Sic  utere  tuo  ut  alienum  non 


CONSTITUTIONAL   DECISIONS  749 

Washington 

l<Bdas,  and,  as  such,  its  constitutionality  is  beyond 
successful  question."  See,  also,  Leavitt  v.  Morris,  105 
Minn.  170;  117  N.  W.  393;  17  L.  R.  A.  (N.  S.)  984; 
Mitchell  V.  Williams,  27  Ind.  62;  Van  Horn  v.  People, 
46  Mich.  183;  9  N.  W.  246;  41  Am.  Rep.  159;  Cole  v. 
Hall,  103  III.  30;  Longyear  v.  Buck,  83  Mich.  236;  47 
N.  W.  234;  10  L.  R.  A.  43;  Hoist  v.  Roe,  39  Ohio  St. 
340;  48  Am.  Rep.  459;  State  v.  Frame,  39  Ohio  St.  399. 

The  foregoing  cases,  while  defending  the  statute  here 
in  question  against  the  charge  of  class  legislation,  are 
interesting  from  another  aspect  also.  They  furnish 
examples  of  constitutional  statutes  creating  Uability 
without  fault.  To  effect  insurance  as  an  agent,  to  sell 
intoxicating  liquors  where  not  forbidden  by  the  State, 
or  to  own  and  keep  dogs,  is  not  of  itself  unlawful,  and 
it  would  seem  that  any  reason  which  would  justify  the 
levying  of  a  tax  on  persons  pursuing  these  occupations 
as  business  callings,  or  owning  and  keeping  the  species 
of  property  mentioned,  would  justify  the  levy  sought  to 
be  made  by  the  act  before  us. 

The  third  principal  objection  to  the  constitutionality 
of  the  act  is  that  it  violates  the  provisions  of  the  Con- 
stitution designed  to  secure  equal  and  uniform  taxation 
of  property  for  public  purposes.  As  the  charge  laid  on 
the  persons  engaged  in  the  industries  named  in  the 
act  is  a  pecuniary  burden  imposed  by  public  authority, 
it  partakes  of  the  nature  of  a  tax  and,  in  the  language 
of  a  distinguished  judge  discussing  a  similar  question, 
"for  many  purposes  might  be  so  spoken  of  without 
harm."  But  it  is  manifest  that  it  is  not  a  "tax"  in 
the  sense  the  word  is  used  in  the  sections  of  the  Consti- 
tution to  which  reference  is  here  made.  No  accession 
to  the  public  revenue,  general  or  local,  is  authorized  or 


750    Bradbury's  workmen's  compensation  law 

Washington 

aimed  at.  The  purpose  of  the  exaction  is  entirely 
different.  It  is  to  be  used,  not  to  meet  the  current 
expenses  of  government,  but  to  recompense  employes 
of  the  industries  on  whom  the  burden  is  imposed  for 
injuries  received  by  them  while  engaged  in  the  pursuit 
of  their  employment.  It  is  the  consideration  which  the 
owners  of  the  industries  pay  for  the  privilege  of  carrying 
them  on.  It  is  therefore  in  the  nature  of  a  license  tax, 
and  can  be  justified  on  the  principle  of  law  that  justifies 
the  imposition  and  collection  of  license  taxes  generally. 

In  this  State,  such  taxes  may  be  imposed,  either  as  a 
regulation  or  for  the  purposes  of  revenue,  the  only 
limitation  upon  the  power  being  that  such  taxes  when 
imposed  on  useful  trades  and  industries  shall  not  be 
unreasonable,  and  if  a  class  of  trades  or  industries  is 
selected  from  the  whole,  and  the  tax  imposed  upon  the 
class  selected  alone  rather  than  upon  the  whole,  that 
there  be  some  reasonable  ground  for  making  the  dis- 
tinction. Walla  Walla  v.  Ferdon,  21  Wash.  308;  57 
Pac.  796;  Fleetwood  v.  Read,  21  Wash.  547;  58  Pac.  665; 
47  L.  R.  A.  205;  Stull  v.  De  Mattos,  23  Wash.  71;  62 
Pac.  451;  51  L.  R.  A.  892;  Seattle  v.  Barto,  31  Wash.  141; 
71  Pac.  735;  In  re  Garfinkle,  37  Wash.  650;  80  Pac.  188; 
Oilure  Mfg.  Co.  v.  Pidduck-Ross  Co.,  38  Wash.  137;  80 
Pac.  276 ;  McKnight  v.  Hodge,  55  Wash.  289 ;  104  Pac.  504. 

The  general  rule  governing  the  right  to  impose  such 
license  taxes  is  well  stated  by  Judge  Brewer  in  Newton 
V.  Atchison,  31  Kan.  151;  1  Pac.  288;  47  Am.  Rep.  486, 
in  the  following  language :  ''Before  noticing  some  specific 
objections  which  are  made  to  this  particular  tax,  we 
think  it  proper  to  state  certain  general  propositions 
which  underlie  this  matter  of  a  license  tax.  First.  In 
the  absence  of  any  inhibition,  express  or  implied,  in 


CONSTITUTIONAL   DECISIONS  751 

Washington 

the  Constitution,  the  legislature  has  power,  either  di- 
rectly to  levy  and  collect  license  taxes  on  any  business 
or  occupation,  or  to  delegate  like  authority  to  a  mu- 
nicipal corporation.  This  seems  to  be  the  concurrent 
voice  of  all  the  authorities.  In  1  Dillon  on  Municipal 
Corporations  (3d  Ed.),  §357,  note,  the  author  says: 
'Unless  specially  restrained  by  the  Constitution,  the 
legislature  may  provide  for  the  taxing  of  any  occupa- 
tion or  trade,  and  may  confer  this  power  upon  municipal 
corporations.'  In  Burroughs  on  Taxation,  p.  148,  is 
this  language:  'Where  the  Constitution  is  silent  on  the 
subject,  the  right  of  the  State  to  exact  from  its  citizens 
a  tax  regulated  by  the  avocations  they  pursue  cannot 
be  questioned.'  In  Savings  Society  v.  Coite,  6  Wall. 
606;  18  L.  Ed.  897,  the  Supreme  Court  of  the  United 
States  thus  states  the  law:  'Nothing  can  be  more  cer- 
tain in  legal  decision  than  that  the  privileges  and  fran- 
chises of  a  private  corporation,  and  all  trades  and  avoca- 
tions by  which  the  citizens  acquire  a  livelihood,  may  be 
taxed  by  a  State  for  the  support  of  the  state  govern- 
ment.' Hamilton  Co.  v.  Massachusetts,  6  Wall.  638; 
18  L.  Ed.  904;  Cooley  on  Taxation,  384-392,  410.  On 
page  384  the  author  observes:  'The  same  is  true  of 
occupations;  government  may  tax  one,  or  it  may  tax 
all.  There  is  no  restriction  upon  its  power  in  this  regard 
unless  one  is  expressly  imposed  by  the  Constitution.' 
In  State  Tax  on  Foreign-held  Bonds,  15  Wall.  300;  21 
L.  Ed.  179,  Field,  J.,  among  other  things,  speaking  of 
the  power  of  taxation,  says :  '  It  may  touch  property  in 
every  shape,  in  its  natural  condition,  in  its  manufactured 
form,  and  in  its  various  transmutations.  And  the 
amount  of  taxation  may  be  determined  by  the  value  of 
the  property,  or  its  use,  or  its  capacity,  or  its  productive- 


752    Bradbury's  workmen's  compensation  law 

Washington 

ness.  It  may  touch  business  in  the  almost  infinite 
forms  in  which  it  is  conducted;  in  professions,  in  com- 
merce, in  manufactures,  and  in  transportation.  Un- 
less restrained  by  the  Constitution,  the  power  as  to 
the  mode,  forms,  and  extent  of  taxation  is  unlimited.' 
See,  also,  the  authorities  collected  in  Fretwell  v.  City  of 
Troy,  18  Kan.  274.  Nor  does  this  rest  alone  upon  a 
mere  matter  of  authority.  Full  legislative  power  is, 
save  as  specially  restricted  by  the  Constitution,  vested 
in  the  legislature.  Taxation  is  a  legislative  power.  Full 
discretion  and  control  therefore  in  reference  to  it  are 
vested  in  the  legislature,  save  when  specially  restricted. 
There  is  no  inherent  vice  in  the  taxation  of  avocations. 
On  the  contrary,  business  is  as  legitimate  an  object 
of  the  taxing  power  as  property.  Oftentimes  a  tax  on 
the  former  results  in  a  more  even  and  exact  justice  than 
one  on  the  latter.  Indeed,  the  taxing  power  is  not 
limited  to  either  property  or  avocations.  It  may,  as 
was  in  fact  done  during  the  late  war  and  the  years 
immediately  succeeding,  be  cast  upon  incomes,  or 
placed  upon  deeds  and  other  instruments.  We  know 
there  is  quite  a  prejudice  against  occupation  taxes. 
It  is  thought  to  be  really  double  taxation.  Judge  Dil- 
lon well  says  that '  such  taxes  are  apt  to  be  inequitable, 
and  the  principle  not  free  from  danger  of  great  abuse.' 
Yet,  wisely  imposed,  they  will  go  far  toward  equalizing 
public  burdens.  A  lawyer  and  a  merchant  may,  out 
of  their  respective  avocations,  obtain  the  same  income. 
Each  receives  the  same  protection  and  enjoys  the  same 
benefits  of  society  and  government.  Yet  the  one  having 
tangible  property  pays  taxes;  the  other,  whose  property 
is  all  in  legal  learning  and  skill,  wholly  tangible,  pays 
nothing.     A  wisely-adjusted  occupation  tax  equalizes 


CONSTITUTIONAL   DECISIONS  753 

Washington 

these  inequalities.'  But,  after  all,  these  are  questions  of 
policy,  and  for  legislative  consideration.  It  is  enough 
for  the  courts  that  both  occupation  and  property  are 
legitimate  objects  of  taxation;  that  they  are  essentially 
dissimilar;  that  constitutional  provisions  regulating  the 
taxation  of  one  do  not  control  that  of  the  other;  and 
that  there  are  no  constitutional  inhibitions  on  the 
taxation  of  business,  either  by  the  legislature  directly, 
or  by  municipal  corporations,  thereto  empowered  by 
the  legislature.  Second.  There  is  no  inhibition,  express 
or  implied,  in  our  Constitution,  on  the  power  of  the  legis- 
lature to  levy  and  collect  license  taxes,  or  to  delegate 
like  power  to  municipal  corporations.  It  is  not  pre- 
tended that  there  is  any  express  inhibition.  It  has  been 
contended  that  §  1,  article  11,  creates  an  implied  in- 
hibition, and  this  because  it  reads  that  'the  legislature 
shall  provide  for  a  uniform  and  equal  rate  of  assess- 
ment and  taxation.'  But  that  section  obviously  refers 
to  property,  and  not  to  license  taxes." 

In  Fleetwood  v.  Reed,  supra,  this  court  discussing  the 
question  whether  taxation  of  this  sort  was  prohibited 
by  the  Constitution,  said:  ''It  is  insisted,  also,  that  the 
ordinance  is  void  because  it  imposes  a  burden  upon  a 
portion,  and  not  the  whole,  of  a  class  of  merchants. 
We  do  not  think  this  contention  is  tenable.  The  or- 
dinance does  apply  to  all  merchants  who  see  fit  to  en- 
gage in  the  business  of  buying  tickets  of  that  kind,  and 
the  constitutional  provision  (article  1,  §  12)  that  no  law 
shall  be  passed  granting  to  any  citizen,  class  of  citizens, 
or  corporation  other  than  municipal  privileges,  or 
immunities  which,  upon  the  same  terms,  shall  not 
equally  belong  to  all  citizens  or  corporations,  cannot  be 
invoked  against  this  ordinance.  The  adjudicated  cases 
48    , 


754    Bradbury's  workmen's  compensation  law 

Washington 

in  this  respect  are  so  numerous  that  it  is  scarcely  worth 
while  to  mention  them  here.  The  ordinance  cannot 
be  held  void  on  account  of  excessive  burden  imposed. 
It  is  not  so  impressive  that  it  will  in  any  way  interfere 
with  the  rights  of  merchants.  However  wrong  the 
policy  may  be  which  prompted  the  enactment  of  this 
ordinance,  or  however  doubtful  the  propriety  of  passing 
such  an  ordinance,  those  are  questions  which  are  sub- 
mitted by  the  legislature  to  the  discretion  of  the  council, 
and  upon  them  it  is  not  our  province  to  comment. 
We  think,  without  further  investigation,  that  there  is 
no  doubt  that  the  ordinance  is  warranted  by  legislative 
authority.  Some  question  was  raised  by  the  court  at 
the  time  of  the  argument  of  this  case  in  relation  to  the 
ordinance  being  in  conflict  with  §§  1,2,  and  9  of  article  7 
of  the  state  constitution,  which  provide  for  uniformity 
in  taxation.  Counsel  for  the  respondent  was  requested 
by  the  court  to  furnish  it  with  a  brief  on  that  subject, 
which  he  did,  and  upon  an  examination  of  the  cases 
cited  and  of  other  cases,  we  have  become  convinced 
that  the  question  raised  by  the  court  was  not  a  question 
pertinent  in  this  case;  that,  under  the  great  weight  of 
authority  a  tax  on  occupation,  business,  etc.,  is  not,  in 
legal  contemplation,  a  tax  on  property,  which  falls 
within  the  inhibition  imposed  by  the  usual  constitu- 
tional provisions  in  relation  to  uniformity  of  taxation; 
and,  in  consideration  of  the  fact  that  the  state  consti- 
tution is  a  limitation  upon  the  actions  and  powers  of  the 
legislature  instead  of  a  grant  of  power,  that  the  power  of 
the  legislature  to  tax  trades,  professions,  and  occupa- 
tions is,  in  the  absence  of  constitutional  restriction,  a 
matter  within  its  absolute  control  and  resting  entirely 
in  sound  legislative  discretion." 


CONSTITUTIONAL   DECISIONS  755 

Washington 

The  sums  exacted  from  the  several  industries  named 
we  think  may  be  treated  as  partaking  both  of  the  nature 
of  a  hcense  for  revenue  and  regulation;  as  such,  how- 
ever, we  find  nothing  in  the  principle  inimical  to  either 
the  state  or  Federal  constitutions. 

The  fourth  principal  reason  for  which  the  act  is 
thought  to  be  unconstitutional  is  that  it  interferes 
with  the  right  of  trial  by  jury.  It  is  said  that  the  legis- 
lature cannot  fix  a  procrustean  rule  for  the  admeasure- 
ment of  damages  arising  from  injuries  received  by  one 
in  the  employment  of  another,  as  the  employer  and  the 
employe  alike  have  the  right  to  submit  to  a  jury  both 
the  question  of  the  right  to  recover  for  any  such  injury, 
and  the  question  of  the  amount  that  may  be  recovered 
therefor.  But  we  cannot  think  the  rule  absolute.  It 
may  be  that  the  legislature  cannot  fix  the  amount  of 
recovery,  or  provide  for  an  absolute  recovery,  in  all 
cases  where  one  person  is  injured  by  another,  regardless 
of  the  relation  of  the  parties,  or  the  question  whether 
the  injury  is  or  is  not  the  result  of  negligence;  but  it 
does  not  follow  that  it  may  not  so  provide  where  the 
injury  happens  in  that  class  of  employments  subject  to 
legislative  regulation  and  control.  If  it  be,  as  we  have 
attempted  to  show,  a  proper  regulation  of  hazardous 
industries  to  compel  those  engaged  therein  as  owners 
or  operators  to  pay  a  fixed  sum  into  a  fund  to  be  used 
for  the  purpose  of  compensating  the  employes  thereof 
for  injuries  received  by  them,  it  is  difficult  to  under- 
stand why  it  is  not  also  proper  regulation  to  require  the 
employes  of  such  industries  to  accept  a  given  sum  for 
any  injury  they  may  receive  while  so  engaged.  The 
same  power  that  authorizes  the  State  to  regulate  the 
participation  of  the  one  in  the  particular  industry  would 


I 


756    Bradbury's  workmen's  compensation  law 

Washington 

seem  to  authorize  it  to  regulate  the  participation  of 
the  other  therein.  Theoretically,  of  course,  the  em- 
ployer and  employe,  on  entering  into  a  contract  by 
which  the  one  engages  the  services  of  the  other,  stand 
on  the  same  plane,  but  in  practice,  as  it  is  well  known, 
this  ideal  condition  very  seldom  exists.  Greed  and 
sagacity  on  the  one  side,  and  necessity  and  incapacity 
on  the  other,  sometimes  lead  to  contracts  that  create 
conditions  little  short  of  peonage;  and  our  own  reports 
abound  with  instances  where  men  have  been  induced 
to  work  in  situations  so  dangerous  to  life  and  limb  that 
the  wonder  is  not  that  some  of  them  were  injured,  but 
rather  that  any  of  them  escaped  injury.  Indeed,  it  is 
a  common  thing  for  an  employer,  in  defense  of  an  action 
of  damages  brought  by  his  employe  for  injury  received 
in  such  a  situation,  to  urge  that  the  dangers  of  the 
place  were  so  obvious  and  apparent  that  the  employe 
was  guilty  of  contributory  negligence  for  working 
therein.  These  conditions,  we  think,  authorize  the 
interference  of  the  legislature.  The  grounds  upon 
which  the  employer  may  be  held  to  contribute  to  a 
fund  for  the  relief  of  all  injuries  sustained  by  his  em- 
ployes, whatever  the  cause,  we  have  already  stated. 
The  obligation  of  the  employe  to  accept  the  conditions 
of  the  statute  can  rest  on  like  grounds,  namely,  the  wel- 
fare of  the  State.  The  relation  being  one  of  contract 
between  employer  and  employe,  the  State  may  make 
it  a  condition  of  the  contract  that  the  employ^  shall 
accept  a  fixed  sum  for  any  injury  he  may  receive  while 
engaged  in  the  employment,  whether  the  injury  be  the 
result  of  the  inherent  dangers  of  the  employment  or 
the  result  of  some  fault  of  his  employer. 
There  is  of  course  no  direct  authority  supporting  the 


CONSTITUTIONAL   DECISIONS  757 

Washington 

contention  that  the  right  of  trial  by  jury  may  be  thus 
taken  away.  There  are,  however,  cases  maintaining 
principles  more  or  less  analogous  to  the  principle  thus 
involved.  Of  these  State  v.  Buchanan,  29  Wash.  602; 
70  Pac.  52;  59  L.  R.  A.  342;  92  Am.  St.  Rep.  930,  and 
Holden  V.  Hardy,  169  U.  S.  366;  18  Sup.  Ct.  383;  42 
L.  Ed.  780,  are  illustrative.  In  these  cases  it  is  held 
that  the  legislature  may  limit  the  number  of  hours  a 
workman  shall  be  permitted  to  labor  in  certain  classes 
of  employments,  on  the  principle  that  to  do  so  is  to 
protect  the  health  of  the  individual  workman  and  thus 
contribute  to  the  public  welfare.  If  it  be  within  the 
rule  of  the  police  powers  of  the  State  to  interfere  with 
the  workman's  personal  freedom  in  this  regard,  it  would 
seem  to  be  no  greater  stretch  of  power  to  go  one  step 
further  and  provide  that,  if  he  be  injured  while  so  labor- 
ing, he  shall  receive  a  sure  award  in  a  limited  sum  as 
compensation  for  his  injury  and  in  lieu  thereof  shall 
forego  his  common-law  action  in  damages  therefor. 

The  common-law  system  of  making  awards  for  per- 
sonal injuries  has  no  such  inherent  merit  as  to  make 
a  change  undesirable.  While  courts  have  often  said 
that  the  question  of  the  amount  of  compensation  to  be 
awarded  for  a  personal  injury  is  one  peculiarly  within 
the  province  of  the  jury  to  determine,  the  remark  has 
been  induced  rather  because  no  better  method  for  solv- 
ing the  problem  is  afforded  by  that  system,  than  be- 
cause of  the  belief  that  no  better  method  could  be  de- 
vised. No  one  knows  better  than  judges  of  courts  of 
nisi  prius  and  of  review  that  the  common-law  method 
of  making  such  awards,  even  in  those  instances  to  which 
it  is  applicable,  proves  in  practice  most  unsatisfactory. 
All  judges  have  been  witnesses  to  extravagant  awards 


758    Bradbury's  workmen's  compensation  law 

Washington 

made  for  most  trivial  injuries,  and  trivial  awards  made 
for  injuries  ruinous  in  the  nature;  and  perhaps  no  ver- 
dicts of  juries  are  interfered  with  so  often  by  the  courts 
as  verdicts  making  awards  in  such  cases.  There  is  no 
standard  of  measurement  that  the  court  can  submit 
to  the  jury  by  which  they  can  determine  the  amount 
of  the  award.  The  test  of  reasonableness  means  but 
little  to  the  ordinary  juror.  Unused  as  he  is  generally 
to  witnessing  the  results  of  injuries,  he  is  inclined  to 
measure  his  verdict  by  the  amount  of  disorder  he  ob- 
serves, rather  than  by  the  actual  amount  of  disable- 
ment the  injury  has  caused.  Nor  is  he  aided  in  this 
respect  by  the  testimony  of  medical  experts.  Conflict- 
ing as  such  testimony  usually  is,  it  tends  rather  to  con- 
fuse than  enlighten  him.  Perhaps  the  whole  difficulty 
lies  in  the  fact  that  the  question  is  too  much  one  of 
opinion,  and  not  enough  of  fact.  It  must  be  remem- 
bered also  that  the  remedy  afforded  by  the  common 
law,  as  we  have  elsewhere  remarked,  can  be  applied 
only  in  a  limited  number  of  cases  of  injury — cases 
where  the  injury  is  the  result  of  negligence  on  the  part 
of  the  employer,  not  contributed  to  by  the  employ^. 
For  the  greater  number  of  injuries  the  common  law 
affords  no  remedy  at  all.  For  this  unscientific  system 
it  is  proposed  to  substitute  a  system  which  will  make 
an  award  in  all  cases  of  injury,  regardless  of  the  cause 
or  manner  of  its  infliction ;  limited  in  amount,  it  is  true, 
but  commensurate  in  some  degree  to  the  disability 
suffered.  The  desirability  of  this  substitution  is  un- 
questioned, and  we  believe  that  the  legislature  had  the 
power  to  make  it  without  violating  any  principle  of 
the  fundamental  law. 
The  objection  may  be  answered  also  in  another  way. 


CONSTITUTIONAL  DECISIONS  759 

Washington 

The  Constitution  does  not  undertake  to  define  what 
shall  constitute  a  cause  of  action,  nor  to  prohibit  the 
legislature  from  so  doing.  The  right  of  trial  by  jury 
accorded  by  the  Constitution,  as  applicable  to  civil 
cases,  is  incident  only  to  causes  of  action  recognized 
by  law.  The  act  here  in  question  takes  away  the  cause 
of  action  on  the  one  hand  and  the  ground  of  defense  on 
the  other  and  merges  both  in  a  statutory  indemnity 
fixed  and  certain.  If  the  power  to  do  away  with  a 
cause  of  action  in  any  case  exists  at  all  in  the  exercise 
of  the  police  power  of  the  State,  then  the  right  of  trial 
by  jury  is  thereafter  no  longer  involved  in  such  cases. 
The  right  of  jury  trial  being  incidental  to  the  right  of 
action,  to  destroy  the  one  is  to  leave  the  other  nothing 
upon  which  to  operate. 

The  auditor  also  complains  of  the  scheme  adopted 
by  the  legislature  for  correcting  the  evils  they  have 
found  to  exist.  It  is  said  that  the  scheme  is  unduly 
cumbersome;  that  its  administration  will  prove  un- 
necessarily costly  and  burdensome  to  those  whose 
interests  are  affected  by  it,  and  will  lead  to  public  and 
private  abuses  and  consequent  evils  more  dangerous 
to  the  State  than  the  evil  that  it  is  sought  to  correct. 

But  the  courts  are  slow  to  inquire  into  the  mere 
wisdom  of  a  statute.  This  question  is  so  pre-eminently 
one  for  the  lawmaking  branch  of  the  government  that 
the  courts  will  interfere  only  where  there  can  be  no 
two  opinions  as  to  the  mischievous  and  evil  tendencies 
of  the  act.  The  act  in  question  here  was  framed  by  a 
cormnission  composed  of  men  eminent  for  their  ability, 
who  gave  to  the  work  extended  consideration.  It  was 
selected  by  the  legislature  from  among  a  number  of 
proposed  acts  having  a  similar  purpose  submitted  for 


760    Bradbury's  workmen's  compensation  law 

Washington 

their  examination,  and  this,  too,  after  its  evil  tendencies 
had  been  fully  pointed  out  by  the  representatives  of 
the  different  interests  to  be  affected  by  it.  In  the  light 
of  these  facts,  the  court  cannot  do  otherwise  than  put 
it  to  the  test  of  practice.  Moreover,  the  question  be- 
comes one  of  less  importance  when  it  is  remembered 
that  the  sessions  of  the  legislature  are  sufficiently  close 
together  to  enable  that  body  to  correct  any  evil  influence 
the  enforcement  of  the  act  may  have  before  it  becomes 
unduly  harmful. 

In  the  foregoing  discussion  we  have  not  referred  to 
the  decision  of  the  Court  of  Appeals  of  the  State  of  New 
York  in  the  case  of  Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y. 
271;  94  N.  E.  431,  which  holds  the  Workmen's  Compen- 
sation Act  of  that  State  to  be  in  conflict  with  the  due 
process  of  law  clause  of  the  state  constitution,  and  the 
Fourteenth  Amendment  to  the  Constitution  of  the 
United  States.  The  case  has,  however,  been  the  sub- 
ject of  extended  consideration  in  the  briefs  of  counsel, 
and  it  is  urged  upon  by  counsel  for  the  auditor  as  con- 
clusive of  the  questions  at  bar.  The  act  the  court  there 
had  in  review  is  dissimilar  in  many  respects  to  the  act 
before  us,  and  is  perhaps  less  easily  defended  on  eco- 
nomic grounds.  The  principle  embodied  in  the  statutes 
is,  however,  the  same,  and  it  must  be  conceded  that 
the  case  is  direct  authority  against  the  position  we 
have  here  taken.  We  shall  offer  no  criticism  of  the 
opinion.  We  will  only  say  that  notwithstanding  the 
decision  comes  from  the  highest  court  of  the  first  State 
of  the  Union,  and  is  supported  by  a  most  persuasive 
argument,  we  have  not  been  able  to  yield  our  consent  to 
the  view  there  taken. 

We  conclude,  therefore,  that  the  act  in  question  vie- 


CONSTITUTIONAL  DECISIONS  761 

Washington 

lates  no  provision  of  either  the  state  or  Federal  consti- 
tutions, and  that  the  auditor  should  give  it  effect.  Let 
the  writ  issue. 

Dunbar,  C.  J.,  and  Crow,  Morris,  Ellis,  Mount, 
Parker  and  Gose,  JJ.,  concur. 

Chadwick,  J.  (concurring) : 

This  proceeding  is  prosecuted  by  the  relator,  a  simple 
contract  creditor  of  the  State.  There  is  no  party  in 
interest  before  us  whose  interest  it  is  to  challenge  the 
act  of  the  legislature.  This  is  a  moot  case,  pure  and 
simple,  and  the  right  of  the  relator  to  recover  is  in  no 
way  affected  by  the  constitutional  questions  raised 
by  the  parties  and  discussed  by  the  court.  The  legisla- 
ture having  created  the  industrial  insurance  commis- 
sion, its  power  to  organize  cannot  be  questioned  by 
anyone  who  is  not  affected  by  the  terms  of  the  law, 
and  such  expenses  as  it  may  incur  are  proper  charges 
against  the  State  and  may  be  collected  without  refer- 
ence to  the  power  of  the  commission  to  levy  a  tribute 
upon  certain  kinds  of  business,  or  to  make  disburse- 
ment of  the  funds  under  the  provisions  of  the  act. 

Without  questioning  or  discussing  the  conclusions  of 
the  court  upon  the  first  three  propositions  advanced, 
with  all  of  which  I  agree,  the  fourth  proposition  should 
not  now  be  decided  for  the  very  palpable  reason  that 
our  decision  is  binding  upon  no  one,  not  even  upon  the 
court.  No  one  will  contend  that  it  is  of  any  concern 
to  a  furniture  dealer  who  is  seeking  to  collect  his  ac- 
count whether  an  injured  workman  is  to  be  deprived 
of  the  right  to  submit  his  cause  to  a  jury  of  his  peers. 
The  principle  is  too  important  to  be  mooted  by  the 


762    Bradbury's  workmen's  compensation  law 

Washington 

court,  for  some  day  a  real  party  in  interest  will  be  before 
us — either  an  employer  who  feels  aggrieved  at  the 
operation  of  the  law,  or  a  workman  who  has  received 
injuries  which  the  accepted  schedules  will  not  compen- 
sate. And  we  will  be  put  to  the  duty  of  deciding  the 
case  without  reference  to  our  present  decision,  so  that 
the  Federal  questions  involved  may  pass  for  final  hear- 
ing to  the  Supreme  Court  of  the  United  States. 

The  right  to  recover  damages  for  personal  injuries 
suffered  in  consequence  of  the  negligence  of  another 
was  an  admitted  right  at  common  law,  so  that  the  ques- 
tion whether  the  Seventh  Amendment  to  the  Consti- 
tution of  the  United  States,  which  preserves  the  right 
of  trial  by  jury  in  all  cases  maintainable  at  common 
law  which  are  begun  in  the  courts  of  the  United  States, 
would  not  compel  a  Federal  court  to  ignore  our  statute, 
and  the  consequent  question,  whether  a  party  assessed 
could  be  compelled  to  contribute  to  the  indemnity  fund 
unless  he  is  to  be  protected  from  all  suits  of  like  charac- 
ter, becomes  most  material,  and  it  is  to  be  hoped  that 
we  will  have  an  early  opportunity  to  meet  these  issues 
in  a  proper  case. 

That  the  people  of  the  State  of  Washington  can  take 
away  a  right  of  action,  or  abolish  the  right  of  trial  by 
jury,  I  have  no  doubt;  but  whether  the  legislature  can 
do  so  without  the  warrant  of  the  whole  people  expressed 
byway  of  amendment  or  repeal  of  §§  3  and  21  of  article  1 
of  the  state  constitution  is  a  grave  question  which  is 
not  discussed  in  the  opinion  of  the  court.  The  right  of 
trial  by  jury  has  ever  been  regarded  as  the  very  sinew 
of  liberty.  It  was  the  cardinal  principle  of  the  great 
charter,  and  ''it  is  worthy  of  note  that  all  that  is  extant 
of  the  legislation  of  the  Plymouth  Colony  for  the  first 


CONSTITUTIONAL   DECISIONS  763 

Washington 

five  years  consists  of  the  single  regulation  'that  all 
criminal  facts,  and  also  all  manner  of  trespasses  and 
debts  between  man  and  man,  shall  be  tried  by  the 
verdict  of  twelve  honest  men,  to  be  impaneled  by  au- 
thority, in  form  of  a  jury  upon  their  oath.'  1  Palfrey's 
New  England,  340."  Cooley's  Const.  Limitations 
(6th  ed.),  p.  389,  note. 

The  right  is  asserted  in  every  state  constitution. 
Section  21,  supra,  provides  that  ''the  right  of  trial  by 
jury  shall  remain  inviolate."  No  distinction  is  made 
between  civil  and  criminal  cases;  indeed,  the  additional 
text  would  indicate  that  no  distinction  was  intended. 
This  guaranty  has  been  held  by  this  court  to  apply  to 
all  civil-law  actions  maintainable  at  common  law.  State 
ex  rel.  Mullen  v.  Doherty,  16  Wash.  382;  47  Pac.  958; 
58  Am.  St.  Rep.  39.  I  am  a  firm  believer  in  trial  by 
jury  and  am  of  equal  faith  that  the  will  of  the  people 
as  declared  in  their  written  Constitution  is  binding 
upon  legislatures  as  well  as  com"ts,  until  the  people  by 
like  adoption  express  a  contrary  will.  We  should  not 
decide  otherwise  except  at  the  suit  of  a  projper  party. 

The  present  law  seems  to  be  greatly  to  the  advantage 
of  the  employer  for  whom  an  easy  method  of  discharg- 
ing an  obligation  to  his  injured  employe  is  provided, 
but  whether  the  legislature  can  take  from  the  working- 
man  his  right  to  have  the  amount  of  his  compensation 
fixed  by  an  authority  less  than  the  very  people,  who 
have  said  "the  right  of  trial  by  jury  shall  remain  in- 
violate," is  for  future  hearing. 

I  have  not  advanced  these  observations  in  the  way  of 
objections,  for  the  result  of  the  court's  opinion  is  a 
consummation  for  which  I  have  devoutly  hoped;  but 
to  indicate  merely  that  our  decision  upon  the  fourth 


764    bradbuhy's  workmen's  compensation  law 

Ohio 

proposition — the  right  of  trial  by  jury — is  not  settled 
by  this  decision  and  should  not  be  so  regarded,  and 
further,  in  the  event  that  it  be  finally  held  that  a  jury 
trial  cannot  be  dispensed  with,  under  our  present  Con- 
stitution, that  the  objection  may  be  easily  overcome 
without  doing  violence  to  the  purpose  or  principle  of 
the  act,  and  without  amendment  to  the  Constitution, 
by  providing  that,  in  the  event  of  a  dispute  as  to  the 
amount  of  compensation,  a  jury  shall  be  called  to  try 
that  issue,  and  that  its  verdict  shall  be  conclusive. 

Upon  the  fourth  proposition,  therefore,  I  reserve  my 
opinion  until  such  time  as  its  expression  will  have  the 
force  of  law. 

There  being  no  question  that  the  relator  has  a  right 
to  recover  the  amount  due  on  its  account,  it  follows 
that  the  writ  should  issue. 


State  ex  rel.  Wallace  D.  Yaple  v.  D.  S.  Creamer, 
AS  Treasurer  of  the  State  of  Ohio 

(00  Ohio  St.  000;  00  Cent.  Rep.  000) 

Constitutional  law;  Workmen's  Compensation  Act;  police 
power;  due  process  of  law;  trial  by  jury;  freedom  of  contract; 
impairing  obligation  of  contract;  classification  of  industries 

1.  The  Workmen's  Compensation  Act  providing  for  a  classi- 
fication of  certain  industries  where  five  or  more  workmen 
are  employed,  establishing  a  state  insurance  fund  by 
premiums  to  be  paid  at  the  rate  of  ninety  per  cent  by  the 
employers  and  ten  per  cent  by  the  workmen  and  creating 
a  State  Liability  Board  of  Awards  to  administer  such  fund 
and  providing  that  as  to  employers  who  do  not  accept  the 
compensation  principle  that  certain  common-law  defenses 


CONSTITUTIONAL   DECISIONS  765 

Ohio 

shall  be  abolished  in  actions  by  their  workmen,  is  a  valid 
exercise  of  the  police  power  of  the  legislature  and  is  not 
unconstitutional  as  taking  private  property  without  due 
process  of  law  contrary  to  the  Fourteenth  Amendment  of 
the  Federal  Constitution;  nor  is  it  invalid  as  violating  the 
right  to  a  trial  by  jury,  nor  that  it  deprives  parties  of  the 
freedom  of  contract  or  impairs  the  obligation  of  contracts, 
nor  that  it  makes  an  unjust  and  arbitrary  classification  of 
industries  for  the  purposes  of  the  statute. 

The  relator,  a  member  of  the  State  LiabiUty  Board 
.  of  Awards,  filed  his  petition  in  mandamus  to  compel  the 
defendant  treasurer  to  issue  his  warrant  to  pay  an  ac- 
count for  expenses  incurred  by  relator  as  such  member, 
and  in  performance  of  his  duties  under  the  law  passed 
May  31,  1911,  approved  June  15,  1911,  to  "Create 
a  State  Insurance  Fund  for  the  benefit  of  injured,  and 
the  dependents  of  killed  employes,  and  to  provide  for 
administration  of  such  fund,"  etc. 

Defendant  has  filed  a  demurrer  to  the  petition  and 
thus  challenges  the  constitutionality  of  the  act  referred 
to 

Mr.  Timothy  S.  Hogan,  attorney  general,  Mr.  C.  D. 
Laylin,  Mr.  Frank  Davis,  Jr.,  Mr.  J.  Harrington  Boyd, 
Mr.  W.  D.  Yaple,  Mr.  James  I.  Boulger,  Mr.  D.  J. 
Ryan,  Mr.  J.  L.  Hampton  and  Mr.  George  B.  Okey, 
for  relator. 

Messrs.  Lentz,  Karns,  Linton  &  Hengst,  Mr.  S.  H. 
Tolles,  Mr.  H.  B.  Arnold,  Mr.  H.  H.  McKeehan,  Messrs. 
M.  B.  &  H.  H.  Johnson,  Mr.  T.  H.  Hogsett,  Messrs. 
Outhwaite,  Linn  &  Thurman,  Mr.  D.  N.  Postlewaite, 
Mr.  Theodore  W.  Reath,  Mr.  F.  M.  Rivings  and  Mr. 
Henry  Bannon,  for  respondent. 


766    Bradbury's  workmen's  compensation  law 

Ohio 

Johnson,  J. : 

The  statute  in  question  provides  for  the  creation  of 
a  State  Liability  Board  of  Awards,  which  shall  estab- 
lish a  state  insurance  fund,  from  premiums  paid  by 
employers  and  employes  in  the  manner  provided  in  the 
act.  It  provides  a  plan  of  compensation  for  injuries, 
not  willfully  self-inflicted,  resulting  from  accidents  to 
employes  of  employers,  both  of  whom  have  voluntarily 
contributed  to  the  fund  in  the  proportion  of  ten  and 
ninety  per  cent  respectively.  It  applies  only  where 
the  employer  has  five  or  more  operators  regularly  in 
the  same  business  or  in  or  about  the  same  establish- 
ment. An  employer  who  complies  with  the  act  is  re- 
lieved from  liability  to  respond  in  damages  at  common 
law,  or  by  statute,  for  injury  or  death  of  an  employ 6 
who  has  complied  with  its  provisions,  except  when  the 
injury  arises  from  the  willful  act  of  himself  or  officer  or 
agent,  or  from  failure  to  comply  with  any  law  or  or- 
dinance providing  for  the  protection  of  life  and  safety 
of  employes,  in  which  event  the  employe  or  his  repre- 
sentatives have  their  election  between  a  suit  for  dam- 
ages and  a  claim  under  the  act.  Employers  of  five  or 
more  who  do  not  pay  premiums  into  the  fund  are  de- 
prived in  actions  against  them  of  the  common-law  de- 
fenses of  the  fellow-servant  rule,  the  assumption  of 
risk  and  of  contributory  negligence.  Where  the  parties 
are  operating  under  the  act,  the  injured  employ^  and 
his  dependents  in  case  of  death,  are  compelled  to  accept 
compensation  from  the  insurance  fund  in  the  manner 
provided,  except  in  the  cases  above  set  forth. 

The  objections  to  the  validity  of  the  act  are  stated 
by  different  counsel  at  the  bar,  and  in  their  briefs, 
under  various  heads.     All  of  them  are  substantially 


CONSTITUTIONAL   DECISIONS  767 

Ohio 

comprised  in  the  following:  First.  That  it  is  an  un- 
warranted exercise  of  the  police  power  and  directs  the 
State  to  use  public  funds  for  private  purposes.  Second. 
That  §§  20-1  and  21-1  take  private  property  without 
due  process  of  law  in  contravention  of  §§  15,  16  and  19 
of  article  1  of  the  constitution  of  Ohio,  and  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United 
States,  in  that  it  deprives  employers  of  the  defense  of 
assumption  of  risk,  and  deprives  the  employe  of  part 
of  his  wages  to  be  paid  to  the  state  insurance  fund,  of  the 
right  to  sue  for  injuries  sustained,  of  recourse  to  the 
courts  and  of  a  trial  by  jury.  Third.  That  it  deprives 
parties  of  the  freedom  of  contract  and  impairs  the 
obHgations  of  contracts.  Fourth.  That  it  makes  an 
unjust  and  arbitrary  classification  and  does  not  affect 
all  who  are  within  its  reason. 

Sections  20-1  and  21-1  are  as  follows,  viz. : 
"Sec.  20-1.  Any  employer  who  employs  five  or  more 
workmen  or  operatives  regularly  in  the  same  business 
or  in  or  about  the  same  establishment  who  shall  pay 
into  the  state  insurance  fund  the  premiums  provided 
by  this  act,  shall  not  be  liable  to  respond  in  damages 
at  common  law  or  by  statute,  save  as  hereinafter  pro- 
vided, for  injuries  or  death  of  any  such  employ^,  wher- 
ever occurring,  during  the  period  covered  by  such 
premiums,  provided  the  injured  employe  has  remained 
in  his  service  with  notice  that  his  employer  has  paid 
into  the  state  insurance  fund  the  premiums  provided 
by  this  act;  the  continuation  in  the  service  of  such 
employer  with  such  notice,  shall  be  deemed  a  waiver 
by  the  employe  of  his  right  of  action  as  aforesaid. 

"Each  employer  paying  the  premiums  provided  by 
this  act  into  the  state  insurance  fund  shall  post  in  con- 


768    Bradbury's  workmen's  compensation  law 

Ohio 

spicuous  places  about  his  place  or  places  of  business 
typewritten  or  printed  notices  stating  the  fact  that  he 
has  made  such  payment;  and  the  same,  when  so  posted, 
shall  constitute  sufficient  notice  to  his  employes  of  the 
fact  that  he  has  made  such  payment ;  and  of  any  subse- 
quent payments  he  may  make  after  such  notices  have 
been  posted. 

"Sec.  21-1.  All  employers  who  employ  five  or  more 
workmen  or  operatives  regularly  in  the  same  business, 
or  in  or  about  the  same  estabUshment  who  shall  not 
pay  into  the  state  insurance  fund  the  premiums  pro- 
vided by  this  act,  shall  be  liable  to  their  employes  for 
damages  suffered  by  reason  of  personal  injuries  sus- 
tained in  the  course  of  employment  caused  by  the 
wrongful  act,  neglect  or  default  of  the  employer,  or 
any  of  the  employer's  officers,  agents  or  employes,  and 
also  to  the  personal  representatives  of  such  employes 
where  death  results  from  such  injuries  and  in  such  ac- 
tion the  defendant  shall  not  avail  himself  or  itself  of 
the  following  common-law  defenses 

"The  defense  of  the  fellow-servant  rule,  the  defense 
of  the  assumption  of  risk,  or  the  defense  of  contributory 
negligence." 

The  law  was  passed  after  a  report  referred  to  in  the 
briefs  of  a  commission  appointed  by  the  governor,  in 
obedience  to  a  statute  passed  for  that  purpose.  The 
report  was  prepared  after  an  exhaustive  research  into 
industrial  conditions  in  many  countries,  and  an  exami- 
nation of  laws,  which  have  been  passed  in  the  effort 
to  improve  such  conditions.  Substantially  its  conclu- 
sions are,  that  the  system  which  has  been  followed  in 
this  country,  of  dealing  with  accidents  in  industrial 
pursuits,  is  wholly  unsound,  that  there  is  an  intelligent 


CONSTITUTIONAL   DECISIONS  769 

Ohio 

and  widespread  public  sentiment  which  calls  for  its 
modification  and  improvement  and  that  the  general 
welfare  requires  it.  That  there  has  been  enormous 
waste  under  the  present  system,  and  that  the  action 
for  personal  injuries  by  employe  against  employer  no 
longer  furnishes  a  real  and  practical  remedy,  annoys 
and  harasses  both,  and  does  not  meet  the  economic 
and  social  problem  which  has  resulted  from  modern 
industrialism.  Conceding  the  desirabihty  of  improve- 
ment, of  legislative  and  governmental  action,  and  the 
good  results  in  other  countries  which  have  no  written 
constitution  to  limit  the  legislative  power,  we  in  this 
country  have  the  problem  of  devising  a  plan  which 
shall  not  infringe  the  fundamental  law. 

It  is  apparent,  from  a  contemplation  of  the  whole 
enactment  and  its  scope  and  purpose,  as  well  as  of 
the  participation  of  the  State  in  its  administration, 
that  it  must  find  its  validity,  if  at  all,  in  the  police 
power  of  the  State. 

There  is  now  (it  can  be  fairly  said)  general  con- 
currence in  the  meaning  of  the  term  'ToUce  Power" 
and  as  to  its  extent. 

Professor  Freund  in  his  work  says  at  §  2:  "The  term 
'  Police  Power '  has  never  been  circumscribed.  It  means 
at  the  same  time  a  power  and  function  of  government, 
a  system  of  rules  and  an  administrative  organization 
and  force."  And  in  §  3,  after  discussing  its  nature  and 
aims,  he  says:  ''It  will  reveal  the  police  power  not  as 
a  fixed  quantity,  but  as  the  expression  of  social,  eco- 
nomic and  poUtical  conditions.  As  long  as  these  condi- 
tions vary,  the  police  power  must  continue  to  be  elastic, 
i.  e.,  capable  of  development." 

In  The  State  ex  rel.  Monnett  v.  Pipe  Line  Co.,  61  Ohio 
49 


770    Bradbury's  workmen's  compensation  law 

Ohio 

St.  520,  as  to  the  constitutionality  of  the  Ohio  Anti- 
Trust  Law,  it  is  said :  "The  definite  proposition  of  coun- 
sel upon  this  point  is  that  although  the  act  is  the  exer- 
cise of  legislative  power,  it  transcends  the  provisions  of 
the  state  and  Federal  constitutions,  which  render  in- 
violable the  rights  of  liberty  and  property,  which  in- 
clude the  right  to  make  contracts.  It  would  be  difficult 
to  place  too  high  an  estimate  upon  these  guaranties, 
and  they  include  the  right  to  make  contracts.  But  it  is 
settled  that  these  guaranties  are  themselves  limited  by 
the  public  welfare  or  the  exercise  of  the  police  power." 

In  Phillips  V.  State,  77  Ohio  St.  215,  it  is  said:  "It 
is  almost  an  axiom  that  anything  which  is  reasonable 
and  necessary  to  secure  the  peace,  safety,  morals  and 
best  interest  of  the  commonwealth  may  be  done  under 
the  police  power;  and  this  implies  that  private  rights 
exist  subject  to  the  public  welfare.  These  principles 
are  plainly  recognized  in  Article  XIV,  §  1,  of  the  Con- 
stitution of  the  United  States,  and  article  1,  §  19,  of 
the  constitution  of  Ohio." 

The  cases  of  Noble  v.  Haskell,  219  U.  S.  104,  and 
Bank  v.  D alley,  219  U.  S.  121,  involved  the  constitu- 
tionality of  laws  enacted  by  Oklahoma  and  Kansas, 
in  the  exercise  of  the  police  power  to  establish  bank 
depositors'  guaranty  funds  created  by  levy  on  each 
of  the  banks.  Objection  was  made  that  the  tax  was  an 
appropriation  of  the  property  of  one  bank  to  pay  the 
debts  of  another  without  due  process  of  law.  Mr.  Jus- 
tice Holmes  said:  "The  substance  of  the  plaintiff's  ar- 
gument is  that  the  assessment  takes  private  property 
for  private  use  without  compensation.  *  *  *  Never- 
theless, notwithstanding  the  logical  form  of  the  objec- 
tion, there  are  more  powerful  considerations  on  the 


CONSTITUTIONAL   DECISIONS  771 

Ohio 

other  side.  In  the  first  place,  it  is  estabhshed  by  a  series 
of  cases  that  an  ulterior  public  advantage  may  justify 
a  comparatively  insignificant  taking  of  private  property 
for  what,  in  its  immediate  purpose,  is  a  private  use.  *  *  * 
It  may  be  said  in  a  general  way  that  the  pohce  power 
extends  to  all  the  great  pubHc  needs.  Canfield  v.  United 
States,  167  U.  S.  518.  It  may  be  put  forth  in  aid  of 
what  is  sanctioned  by  usage,  or  held  by  the  prevaihng 
morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  pubhc  wel- 
fare." 

We  think  it  clear,  that  the  objects  and  purposes  as 
above  set  forth,  which  the  legislature  contemplated 
in  the  passage  of  the  law  in  question,  are  sufficient  to 
sustain  the  exercise  of  the  police  power,  and  the  partic- 
ipation of  the  State  in  the  manner  provided.  Whether 
the  plan  adopted  is  the  most  appropriate  or  best  cal- 
culated to  accomplish  those  objects  are  matters  with 
which  the  court  is  not  concerned  and  the  law  should 
not  be  held  to  be  invahd  unless  clearly  in  violation  of 
some  provisions  of  the  Constitution. 

It  is  urgently  insisted  that  while  the  law  is  apparently 
permissive  and  leaves  its  operations  to  the  election  of 
employers  and  employes,  it  is  really  coercive  and  upon 
this  premise  much  persuasive  argument  against  the 
validity  of  the  law  is  based.  This  is  an  important 
question  in  the  case. 

An  examination  of  the  sections  touching  the  ques- 
tions made  is  here  necessary. 

After  providing  in  §  20-1  that  an  employer  who  elects 
to  comply  with  the  act  shall  be  relieved  from  fiabihty 
to  the  employe  at  common  law,  or  by  statute  (except 
as  provided  in  §  21-2)  it  is  then  enacted  in  §  21-1, 


772    Bradbury's  workmen's  compensation  law 

Ohio 

"All  employers  who  shall  not  pay  into  the  insurance 
fund,  etc.,  shall  be  liable  to  their  employes  for  damages, 
etc.,  caused  by  the  wrongful  act,  neglect  or  default  of 
the  employer,  his  agents,"  etc.,  and  in  such  cases  the 
defenses  of  assumption  of  risk,  fellow  servant  and  con- 
tributory negligence  are  not  available.  So  that  an  em- 
ployer who  elects  not  to  come  into  the  plan  of  insurance 
may  still  escape  liability  if  he  is  not  guilty  of  wrongful 
act,  neglect  or  default.  His  liability  is  not  absolute 
as  in  the  case  of  the  New  York  statute  hereinafter 
referred  to.  And  it  cannot  be  said  that  the  withdrawal 
of  the  defenses  of  assumption  of  risk,  fellow  servant 
and  contributory  negUgence  as  against  an  employer 
who  does  not  go  into  the  plan,  is  coercive,  for  such 
withdrawal  is  in  harmony  with  the  legislative  policy 
of  the  State  for  a  number  of  years  past.  The  law  known 
as  the  Norris  law,  passed  in  1910,  withdrew  these  de- 
fenses in  the  particulars  covered  by  the  law. 

As  to  the  employ^,  if  the  parties  do  not  elect  to  oper- 
ate under  the  act,  he  has  his  remedy  for  the  neglect, 
wrongful  act  or  default  of  his  employer  and  agents  as 
before  the  law  was  passed,  and  is  not  subject  to  the 
defenses  named. 

If  the  parties  are  operating  under  the  act  the  employ^ 
contributes  to  an  insurance  fund  for  the  benefit  of 
himself  or  his  heirs,  and  in  case  he  is  injured  or  killed, 
he  or  they  will  receive  the  benefit  even  though  his  in- 
jury or  death  was  caused  by  his  own  negHgent  or  wrong- 
ful act,  not  willful.  And  that  is  not  all.  Under  §  21-2 
if  the  parties  are  operating  under  the  act  and  the  em- 
ploy^ is  injured  or  killed,  and  the  injury  arose  from  the 
willful  act  of  his  employer,  his  officer  or  agent,  or  from 
failure  of  the  employer  or  agent  to  comply  with  legal 


CONSTITUTIONAL   DECISIONS  773 

Ohio 

requirements,  as  to  safety  of  employes,  then  the  in- 
jured employe  or  his  legal  representative  has  his  option 
to  claim  under  the  act  or  sue  in  court  for  damages. 

Therefore,  the  only  right  of  action  which  this  statute 
removes  from  the  employ^  is  the  right  to  sue  for  mere 
negligence  (which  is  not  willful  or  statutory)  of  his  em- 
ployer, and  it  is  within  common  knowledge  that  this 
has  become  in  actual  practice  a  most  unsubstantial 
thing.  It  is  conceded  by  counsel  that  the  particulars 
named  in  §  21-2  are  such,  as  form  the  basis  for  a  large 
portion  of  claims  for  personal  injuries. 

Many  employers  may  elect  to  remain  outside  its 
provisions;  it  would  not  be  strange  if  many  do  so.  On 
the  other  hand,  some  workmen  may  feel  disposed  to 
do  likewise  in  spite  of  what  would  seem  to  be  to  their 
manifest  advantage  in  securing  the  benefits  of  the 
insurance.  However,  if  there  should  be  such  general 
acceptance  of  and  compliance  with  the  statute  as  its 
framers  hope  for,  so  as  to  bring  a  large  part  of  the  labor 
employed  in  the  industrial  enterprises  of  the  State 
within  its  influence  and  operation,  that  would  not 
demonstrate  its  coercive  character;  on  the  contrary,  it 
would  justify  the  enactment.  Naturally  time  and  ex- 
perience will  disclose  imperfections  and  inefficiencies 
in  the  plan,  but  if  it  should  prove  to  be  feasible,  and 
appropriate  in  a  general  way,  these  imperfections  can 
be  corrected  by  the  legislature.  On  account  of  the 
common  law  and  statutory  rights  still  preserved  to  the 
parties  by  this  statute  (as  we  have  pointed  out)  in  cases 
where  the  election  is  made  to  come  under  its  provisions 
as  well  as  not  to  do  so,  taken  in  connection  with  the 
advantage  to  each  which  the  plan  contemplates,  we 
cannot  say  that  the  statute  is  coercive.    As  was  said  in 


774    Bradbury's  workmen's  compensation  law 

Ohio 

the  Wisconsin  case:  "Laws  cannot  be  set  aside  upon 
mere  conjecture  or  speculation.  The  court  must  be 
able  to  say  with  certainty  that  an  unlawful  result  will 
follow."  We  do  not  see  how  any  such  thing  can  be 
said  here.  Every  consideration  of  prudence  and  self- 
interest  (things  not  easily  associated  with  compulsion 
and  coercion)  would  seem  to  lead  an  employ^  to  volun- 
tarily make  the  contribution  and  waiver  contemplated. 

Second:  Does  this  statute  take  private  property 
without  due  process  of  law  and  deny  the  guaranties 
of  the  constitution  as  claimed? 

Perhaps  no  exact  definition  of  ''due  process  of  law" 
has  been  agreed  upon.  Judge  Story  defines  it  in  his 
work  on  the  Constitution,  §  1935:  ''The  right  to  be 
protected  in  life  and  liberty  and  in  the  acquisition  of 
property  under  equal  and  impartial  laws,  which  govern 
the  whole  community.  This  puts  the  State  upon  its 
true  foundation,  for  the  establishment  and  administra- 
tion of  general  justice,  justice  of  law,  equal  and  fixed, 
recognizing  individual  rights  and  not  impairing  them." 
In  Cooley  on  Const.  Lim.,  §  356,  it  is  said:  "Due  process 
of  law  in  each  particular  case,  means  such  an  exercise 
of  the  government  as  the  settled  maxims  of  the  law  per- 
mit and  sanction,  and  under  such  safeguards  for  the 
protection  of  individual  rights  as  those  maxims  prescribe 
for  the  classes  of  cases  to  which  the  one  in  question 
belongs." 

The  case  of  Ives  v.  South  Buffalo  Railway  Co.,  201 
N.  Y.  271  (relied  on  by  some  of  counsel),  involved  a 
statute  different  in  many  essentials  from  the  Ohio  law. 
Its  controlling  feature  was  that  every  employer  engaged 
in  any  of  the  classified  industries  should  be  liable  to  a 
workman  for  injury  arising  in  the  course  of  the  work  by 


CONSTITUTIONAL  DECISIONS  775 

Ohio 

a  necessary  risk  inherent  in  the  business  whether  the 
employer  was  at  fault  or  not  and  whether  the  employ^ 
was  at  fault  or  not,  except  when  his  fault  was  willful. 

The  court  held  the  law  invalid,  as  imposing  the 
ordinary  risks  of  a  business  (which  under  the  common 
law  the  employ^  was  held  to  assume)  on  the  employer. 
The  court  states  one  of  the  premises  on  which  it  pro- 
ceeds as  follows:  ''When  our  constitutions  were  adopted, 
it  was  the  law  of  the  land  that  no  man  who  was  without 
fault  or  negligence  could  be  held  liable  in  damages  for 
injuries  sustained  by  another." 

But  that  rule  was  not  of  universal  appUcation.  At 
common  law  one  may  sustain  such  relation  to  the 
inception  of  an  undertaking  that  he  will  be  held  liable 
for  negligence  in  the  progress  of  the  enterprise,  even 
though  he  have  no  part  or  connection  with  the  negli- 
gent act  itself  which  caused  the  injury.  Such  for  in- 
stance, as  where  the  owner  of  property  contracts  with 
an  independent  contractor  to  do  work  which  though 
entirely  lawful,  yet  has  inherent  probabiHties  of  harm 
if  negligently  performed.  The  position  in  the  line  of 
causation  which  employers  sustain  in  modern  industrial 
pursuits  is  of  course  the  basic  fact  on  which  Employers' 
Liability  Laws  rest. 

As  to  the  right  to  abolish  the  defense  of  assumption 
of  risk,  it  is  enough  to  say  here  that  the  great  weight  of 
authority  is  against  the  New  York  position  and  the 
position  of  such  of  the  counsel  in  this  case  as  insist  on 
that  rule.  Some  of  counsel  appearing  against  the  valid- 
ity of  this  law,  concede  the  right  to  abolish  the  defenses 
referred  to.  The  Supreme  Courts  of  Massachusetts, 
Wisconsin  and  Washington  have  recently  h§ld  in  cases 
sustaining  the  validity  of  statutes  similar  to  the  one 


776    Bradbury's  workmen's  compensation  law 

Ohio 

here  attacked,  that  it  is  within  the  legislative  power  to 
abolish  the  defense  referred  to.  In  re  Opinion  of  Jus- 
tices, 96  N.  E.  Rep.  308  (Mass.) ;  Borgnis  v.  Falk,  133 
N.  W.  Rep.  209  (Wis.);  State  v.  Clausen,  117  Pac.  Rep. 
1101  (Wash.). 

Since  the  argument  of  this  case  the  Supreme  Court 
of  the  United  States  has  decided  the  case  of  Mondou  v. 
N.  Y.,  New  Haven  &  Hartford  Railroad  Co.,  223  U.  S.  1, 
and  has  sustained  the  constitutionality  of  the  Em- 
ployers' Liability  Law  passed  by  Congress.  The  aboli- 
tion of  these  rules  was  urged  as  an  objection  to  the  law. 
The  court  say:  "A  person  has  no  property,  no  vested 
interest,  in  any  rule  of  the  common  law.  That  is  only 
one  of  the  forms  of  municipal  law,  and  is  no  more  sacred 
than  any  other.  Rights  of  property  which  have  been 
created  by  the  common  law  cannot  be  taken  away  with- 
out due  process;  but  the  law  itself,  as  a  rule  of  conduct, 
may  be  changed  at  the  will  *  *  *  of  the  legislature, 
unless  prevented  by  constitutional  limitations.  Indeed, 
the  great  office  of  statutes  is  to  remedy  defects  in  the 
common  law  as  they  are  developed,  and  to  adapt  it 
to  the  changes  of  time  and  circumstances."  Munn  v. 
Illinois,  94  U.  S.  113;  Martin  v.  Pittsburg  &  Lake  Erie 
R.  R.  Co.,  203  U.  S.  284,  294;  The  Lottawanna,  21  Wall. 
558,  577;  Western  Union  Telegraph  Co.  v.  Commercial 
Milling  Co.,  218  U.  S.  406,  417. 

The  recent  case  of  State  v.  Boone,  84  Ohio  St.  346,  is 
cited  as  indicating  limitations  of  the  police  power  which 
apply  here.  The  act  involved  in  that  case  required  the 
physician  in  attendance  on  a  case  of  confinement  to 
investigate  and  certify  without  compensation  to  cer- 
tain facts  which  would  not  naturally  come  within  the 
knowledge  of  the  attending  physician,  and  as  to  mat- 


CONSTITUTIONAL   DECISIONS  777 

Ohio 

ters  wholly  outside  the  scope  of  his  professional  duty. 
The  court  held  the  statute  unconstitutional  as  to  phy- 
sician and  midwife  because  of  an  unreasonable  and 
arbitrary  exercise  of  the  pohce  power.  That  was  the 
proposition  of  law  decided  in  that  case  and  no  other 
proposition  was  decided.  The  court  was  careful  to 
point  out  in  the  opinion  and  also  on  apphcation  for  re- 
hearing that  the  State  might  require  the  physician  to 
report  to  proper  authority,  facts  which  would  come 
naturally  under  his  observation  in  the  line  of  his  duty 
without  compensation.  Other  matters  referred  to  in 
the  opinion  were  not  included  in  the  syllabus  which 
stated  the  law  decided  by  the  court. 

The  court  remarks  that  the  police  power  inheres  in 
the  sovereignty.  Its  foundation  "is  the  right  and  duty 
to  provide  for  the  common  welfare  of  the  governed." 
Manifestly  the  reasoning  which  led  to  the  conclusion 
in  that  case  that  the  statute  had  been  passed  by  an 
unreasonable  exercise  of  the  poUce  power  can  have  no 
application  here. 

State  V.  Hubbard,  22  C.  C.  253,  affirmed  without 
report,  in  65  Ohio  St.  574,  and  State  v.  Guilbert,  56  Ohio 
St.  575,  involving  the  validity  of  statutes  creating  a 
teachers'  pension  fund  and  the  Torrens  law  to  estab- 
lish an  insurance  fund  for  the  protection  of  land  titles 
concerned  laws  which  were  wholly  compulsory  with  no 
element  of  choice  and  were  not  claimed  to  have  been 
passed  under  the  police  power  to  cure  undesirable  public 
conditions  but  for  mere  private  benefit.  These  cases 
can  therefore  have  no  relation  to  a  plan  adopted  to 
promote  the  general  welfare,  the  contributions  to  which 
are  made  after  an  election  by  the  parties  to  participate 
in  the  undertaking. 


778    Bradbury's  workmen's  compensation  law 

Ohio 

It  is  urged  by  counsel  opposing  this  law  that  the  case 
of  Byers  v.  Meridian  Printing  Co.,  84  Ohio  St.  408,  is 
of  conclusive  weight  condemnatory  of  the  legislation 
we  are  examining. 

In  that  case  it  is  ruled  that  an  amendment  to  §  5094, 
Revised  Statutes  (changing  the  presumption  of  malice 
and  burden  of  proof  in  actions  for  libel  where  retraction 
is  made  on  demand,  in  the  manner  stated),  is  uncon- 
stitutional. 

The  decision  was  put  on  the  ground  that  plaintiff  was 
guaranteed  his  remedy  by  due  course  of  law  for  an 
injury  done  in  his  land,  goods,  person  or  reputation, 
under  article  1,  §  16,  constitution  of  Ohio.  When  the 
injury  was  done  to  the  reputation  of  plaintiff  by  the 
libel,  he  was  entitled  to  his  constitutional  remedy  at 
law,  but  at  the  same  time  he  was  entitled  to  demand  of 
the  publisher  a  retraction  of  the  libel.  Therefore  the 
legislature  had  no  right  to  put  him  on  his  election  as 
to  two  courses  both  of  which  he  was  entitled  to  follow. 

The  court  is  careful  to  declare  that  it  is  not  disposed 
to  question  that  a  citizen  may  waive  a  constitutional 
right.  But  being  compelled  to  elect  between  two  rights, 
both  of  which  a  person  is  entitled  to,  has  no  resemblance 
to  waiver.  But  under  the  law  under  investigation  here 
as  already  shown,  the  right  of  action  (for  injury  by 
willful  act  of  the  employer  and  for  his  failure  to  comply 
with  requirements  as  to  safety  of  employes)  is  still 
reserved  to  the  employes.  So  that  the  only  thing  with- 
drawn by  this  law,  and  to  which  withdrawal  he  consents 
by  his  voluntary  election  to  operate  under  the  law,  is 
his  right  of  action  for  mere  negligence,  and  in  place  of  it 
he  receives  the  substantial  protections  and  privileges 
under  the  state  insurance  fund. 


CONSTITUTIONAL   DECISIONS  779 

Ohio 

It  is  stated  in  Butt  v.  Green,  29  Oliio  St.  670,  that 
persons  may  expressly  or  impliedly  waive  either  con- 
stitutional or  statutory  provisions  intended  for  their 
benefit  and  as  above  shown  the  court,  in  the  Byers  case, 
states  it  is  not  disposed  to  question  that  one  may  waive 
a  constitutional  right. 

We  think  that  in  a  case  such  as  is  presented  here, 
in  which  the  State  itself  has  undertaken  a  great  enter- 
prise in  the  interest  of  the  general  good,  and  in  the 
exercise  of  its  police  power,  and  presents  to  its  citizens 
the  option  to  join  in  the  undertaking  and  receive  its 
protection  and  benefit,  on  a  right  of  action  being  with- 
drawn by  the  legislature,  which  experience  has  shown 
to  be  difficult  of  practical  enforcement,  while  preserving 
the  valuable  and  substantial  kindred  rights  of  action, 
it  cannot  be  said  that  in  such  withdrawal  there  is  a 
violation  of  the  Constitution  in  the  respects  claimed. 
But  it  is  insisted  that  the  act  delegates  judicial  power 
to  the  Board  of  Awards,  and  denies  recom'se  to  the 
courts  and  trial  by  jury. 

Of  course  if  the  board  is  a  court  there  is  an  end  of  the 
whole  matter.  The  statute  would  be  unconstitutional. 
For  if  the  board  is  a  court  it  has  not  been  created  in  ac- 
cordance with  the  manner  provided  by  the  Constitution. 

We  do  not  consider  the  Board  of  Awards  a  court, 
or  invested  with  judicial  power,  within  the  meaning 
of  the  Constitution. 

It  is  created  by  the  act  purely  as  an  administrative 
agency  to  bring  into  being  and  administer  the  insurance 
fund,  and  the  fact  that  it  is  empowered  to  classify  per- 
sons who  come  under  the  law  and  to  ascertain  facts 
as  to  the  appUcation  of  the  fund,  does  not  vest  it  with 
judicial  power  within  the  constitutional  sense. 


780    Bradbury's  workmen's  compensation  law 

Ohio 

Under  our  system  the  executive  department  of  the 
government  has  many  boards  to  assist  in  the  administra- 
tion of  its  affairs. 

In  State  v.  Hawkins,  44  Ohio  St.  98,  it  is  said:  ''What 
is  judicial  power  cannot  be  brought  within  the  ring- 
fence  of  a  definition.  It  is  undoubtedly  power  to  hear 
and  determine,  but  this  is  not  peculiar  to  the  judicial 
office.  Many  of  the  acts  of  administrative  and  execu- 
tive officers  involve  the  exercise  of  the  same  power." 
The  court  then  shows  that  many  boards  hear  and 
determine  questions  affecting  private  as  well  as  public 
rights,  and  quotes  with  approval  from  State  v.  Harmon, 
31  Ohio  St.  250:  "The  authority  to  ascertain  facts  and 
apply  the  law  to  the  facts  when  ascertained  pertains 
as  well  to  other  departments  of  government  as  to  the 
judiciary." 

These  principles  were  applied  in  France  v.  State, 
57  Ohio  St.  1,  in  which  case  the  court  remark  that  the 
case  of  State  v.  Guilbert,  56  Ohio  St.  576,  forms  no  ex- 
ception, for  the  powers  of  the  recorder  under  the  statute 
there  in  question  were  essentially  those  which  properly 
belonged  to  a  court.  Does  the  law  deny  recourse  to 
the  courts  and  trial  by  jury? 

How  does  it  affect  an  injured  employe  where  the 
parties  are  operating  under  the  act?  In  Railroad  Co.  v. 
Stankard,  56  Ohio  St.  232,  which  was  a  suit  by  the 
beneficiaries  of  a  member  of  the  relief  department  of 
the  railroad,  the  company  answered  setting  up  a  rule 
which  provided  that  the  decision  of  the  rehef  depart- 
ment should  be  final.  The  court  says,  "The  right  to 
appeal  to  the  courts  for  redress  of  wrongs  is  one  of  those 
rights  which  in  its  nature  under  our  constitution  is  in- 
alienable and  cannot  be  thrown  off  or  bargained  away." 


CONSTITUTIONAL   DECISIONS  781 

Ohio 

But  the  court  shows  that  parties  may  contract  to 
submit  the  fixing  of  facts  to  some  nonjudicial  tribunal 
and  say:  "In  insurance  and  other  like  cases  where  the 
ultimate  question  is  the  payment  of  a  certain  sum  of 
money,  certain  facts  may  be  fixed  by  a  person  selected 
for  that  purpose  in  the  contract,  but  the  ultimate  ques- 
tion as  to  whether  the  money  shall  be  paid  or  not  may 
be  litigated  in  the  courts  and  a  stipulation  to  the  con- 
trary is  void." 

So  that  under  that  rule  the  parties  may  conclusively 
bind  themselves  in  advance  to  submit  questions  of 
amount,  etc.,  to  some  tribunal  other  than  a  court,  but 
the  ultimate  question  of  actual  liabiUty  cannot  be  re- 
moved from  the  courts. 

Now,  in  this  statute,  §  36  is  as  follows : 

"Sec.  36.  The  board  shall  have  full  power  and  au- 
thority to  hear  and  determine  all  questions  within  its 
jurisdiction,  and  its  decision  thereon  shall  be  final. 

"Provided,  however,  in  case  the  final  action  of  such 
board  denies  the  right  of  the  claimant  to  participate 
at  all  in  such  fund  *  *  *  upon  any  *  *  *  ground 
going  to  the  basis  of  the  claimant's  right,  then  the  claim- 
ant within  thirty  (30)  days  after  the  notice  of  the  final 
action  of  such  board  may,  by  fifing  his  appeal  in  the 
common  pleas  court  of  the  county  wherein  the  injury 
was  infficted,  be  entitled  to  a  trial  in  the  ordinary  way, 
and  be  entitled  to  a  jury  if  he  demands  it.  In  such  a 
proceeding,  the  prosecuting  attorney  of  the  county, 
without  additional  compensation,  shall  represent  the 
state  Hability  board  of  awards,  and  he  shall  be  noti- 
fied by  the  clerk  forthwith  of  the  fifing  of  such  ap- 
peal. 

"Within  thirty  days  after  fifing  his  appeal,  the  ap- 


782    Bradbury's  workmen's  compensation  law 

Ohio 

pellant  shall  file  a  petition  in  the  ordinary  form  against 
such  board  as  defendant." 

Therefore,  if  the  board  denies  the  claimaint's  right 
to  participate  in  the  fund  on  any  ground  going  to  the 
basis  of  his  claim,  he  may  by  filing  an  appeal  and  peti- 
tion in  the  ordinary  form  be  entitled  to  trial  by  jury, 
the  case  proceeding  as  any  other  suit. 

It  is  not  an  appeal  in  the  sense  of  appealing  from 
one  court  to  another,  but  is  really  the  beginning  of  an 
original  suit. 

As  to  this  it  must  be  remembered  that  the  whole 
proceeding  is  with  and  against  the  Board  of  Awards. 
His  claim  is  not  against  the  employer.  There  is  no 
dispute  between  them.  His  (the  employe's)  claim  is  for 
the  benefits  of  the  insurance  fund.  The  Board  of 
Awards  inquire  into  the  matters  pointed  out  in  the  stat- 
ute, and  in  case  of  dispute  as  to  whether  there  is  any 
ultimate  right  to  ''participate  at  all  in  such  fund"  he 
has  his  recourse  to  the  courts. 

But  he  is  not  confined  to  that  method  of  proceeding. 
If  he  claims  that  the  injury  was  caused  by  the  willful 
act  of  the  employer  or  officer  or  agent  or  from  failure 
to  comply  with  legal  requirements  as  to  safety  of  em- 
ployes, etc.,  he  may  waive  his  claim  under  the  act  and 
sue  in  court  for  his  damages.  But  in  his  petition  in 
such  case  he  could  not  claim  damages  for  mere  negli- 
gence, he  having  elected  to  waive  that  cause  of  action, 
having  elected,  as  it  were,  to  assume  the  risk  of  his  em- 
ployer's mere  neglect  in  return  for  the  benefits  and  pro- 
tection to  himself  and  his  heirs  afforded  by  the  terms 
of  the  act. 

Another  objection  that  is  urged  against  this  statute 
is,  that  it  makes  an  unjust  and  arbitrary  classification 


CONSTITUTIONAL   DECISIONS  783 

Ohio 

and  does  not  affect  all  who  are  within  its  reason  as 
required  by  §  26,  article  2,  of  the  constitution  of  Ohio. 
Under  the  law  only  employers  of  five  or  more  are  af- 
fected by  it. 

Spear,  J.,  in  Steinkamp  v.  Cincinnati,  54  Ohio  St. 
295,  remarked:  ''In  order  to  be  general  and  uniform 
in  operation,  it  is  not  necessary  that  the  law  should 
operate  upon  every  person  in  the  State,  nor  in  every 
locality;  it  is  sufficient,  the  authorities  concede  in  hold- 
ing, if  it  operates  upon  every  person  brought  within 
the  relation  and  circumstances  provided  for,  and  in 
every  locality  where  the  condition  exists." 

To  same  effect  are  Piatt  v.  Craig,  66  Ohio  St.  75; 
Gentsch  v.  State,  71  Ohio  St.  151;  Railway  Co.  v.  Hosier- 
man,  72  Ohio  St.  107. 

We  think  the  classification  is  reasonable  and  proper. 
In  the  nature  of  the  case  the  risks  of  any  regular  em- 
ployment are  less  and  the  opportunity  for  avoiding 
them  better  where  an  employ^  is  one  of  four  than 
when  the  number  is  larger.  As  was  said  by  Winslow, 
C.  J.,  in  Borgnis  v.  Falk,  supra,  "The  difference  in  the 
situation  is  not  merely  fanciful — it  is  real." 

Coal  Co.  V.  Illinois,  185  U.  S.  203,  is  a  case  in  which  a 
classification  was  made  under  somewhat  similar  man- 
ner, and  was  upheld. 

Nor  do  we  think  it  an  objection  that  the  law  applies 
only  to  workmen  and  operatives  and  not  to  all  others. 
This  classification  brings  within  the  law  all  employes 
within  its  reason. 

As  to  the  suggestion  that  this  statute  impairs  the  obli- 
gations of  contracts  it  is  sufficient  to  say  that  it  can  of 
course  not  affect  contracts  in  existence  and  unexpired 
at  the  time  it  is  put  into  operation  by  any  employer. 


784    Bradbury's  workmen's  compensation  law 

Ohio 

It  is  suggested  that  this  legislation  makes  a  radical 
step  in  our  government  policy  not  contemplated  by 
the  Constitution,  and  which  it  is  the  duty  of  the  court 
to  condemn.  But  it  creates  no  new  right  or  new  remedy 
for  wrong  done. 

It  is  an  effort  to  in  some  degree  answer  the  require- 
ments of  conditions  which  have  come  in  an  age  of  in- 
vention and  momentous  change. 

The  courts  of  the  country,  while  firmly  resisting  en- 
croachment on  the  constitutions  in  the  past,  have  yet 
found  in  their  ample  limits,  sufficient  to  enable  us  to 
meet  the  emergencies  and  needs  of  our  development, 
and  we  do  not  find  that  this  statute  goes  beyond  the 
bounds  put  upon  the  legislative  will. 

The  act  entitled  ''An  act  to  create  a  state  insur- 
ance fund  for  the  benefit  of  injured  and  the  dependents 
of  killed  employes,"  etc.,  102  0.  L.  524,  is  a  valid  ex- 
ercise of  legislative  power  not  repugnant  to  the  Fed- 
eral or  state  constitutions,  or  to  any  limitation  con- 
tained in  either. 

The  demurrer  to  the  petition  will  be  overruled  and 
the  writ  of  mandamus  awarded. 

Spear,  Price  and  Donahue,  JJ.,  concur. 

Decided  February  6,  1912. 


CONSTITUTIONAL   DECISIONS  785 

United  States  Supreme  Court 


SECOND  EMPLOYERS'  LIABILITY  CASES  ' 

223  U.  S.  1 

MoNDOU  V.  New  York,  New  Haven  &  Hartford 
Railroad  Co.  (p.  788) 

error  to  the  supreme  court  of  errors  of  the 
state  of  connecticut 

Northern  Pacific  Railway  Co.  v.  Babcock  (p.  789) 

error  to  the  circuit  court  of  the  united  states 
for  the  district  of  minnesota 

New  York,  New  Haven  &  Hartford  Railroad  Co. 
V,  Walsh  (p.  790) 

Walsh  v.  New  York,  New  Haven  &  Hartford 
Railroad  Co.  (p.  790) 

ERROR  to  the  CIRCUIT  COURT  OF  THE  UNITED  STATES 
FOR  THE   DISTRICT   OF   MASSACHUSETTS 

Nos.  120,  170,  289,  290.    Argued  February  20,  21,  1911.— Decided 
January  15,  1912 

The  Employers'  Liability  Act  of  April  22,  1908,  35  Stat.  65, 
c.  149,  as  amended  April  5,  1910,  36  Stat.  291,  c.  143, 
regulating  the  liability  of  common  carriers  by  railroad  to 
their  employes  is  constitutional. 

Congress  may,  in  the  execution  of  its  power  over  interstate 
commerce,  regulate  the  relations  of  common  carriers  by 
railroad  and  their  employes  while  both  are  engaged  in 
such  commerce. 

Congress  has  not  exceeded  its  power  in  that  regard  by 

1  Reprinted  from  the  oflBcial  report,  223  U.  S.  1. 
50 


786    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

prescribing  the  regulations  embodied  in  the  Employers* 

Liability  Act. 
Those  regulations  have  superseded  the  laws  of  the  several 

States  in  so  far  as  the  latter  cover  the  same  field. 
Rights  arising  under  the  regulations  prescribed  by  the  act 

may  be  enforced,  as  of  right,  in  the  courts  of  the  States, 

when  their  jurisdiction,  as  fixed  by  local  laws,  is  adequate 

to  the  occasion. 

Congress,  in  the  exertion  of  its  power  over  interstate  com- 
merce, and  subject  to  the  Hmitations  prescribed  in  the 
Constitution,  may  regulate  those  relations  of  common  car- 
riers by  railroad  and  their  employes  which  have  a  sub- 
stantial connection  with  interstate  commerce  and  while 
both  carriers  and  employ^  are  engaged  therein. 

A  person  has  no  property — no  vested  interest — in  any  rule 
of  the  common  law.  While  rights  of  property  created  by 
the  common  law  cannot  be  taken  without  due  process,  the 
law  as  a  rule  of  conduct  may,  subject  to  constitutional 
limitations,  be  changed  at  will  by  the  legislature. 

Under  the  power  to  regulate  relations  of  employers  and  em- 
ployes while  engaged  in  interstate  commerce.  Congress 
may  establish  new  rules  of  law  in  place  of  common-law 
rules  including  those  in  regard  to  fellow  servants,  as- 
sumption of  risk,  contributory  negligence,  and  right  of 
action  by  personal  representatives  for  death  caused  by 
wrongful  neglect  of  another. 

In  regulating  the  relations  of  employers  and  employes  en- 
gaged in  interstate  commerce.  Congress  may  regulate  the 
liability  of  employers  and  employes  for  injuries  caused  by 
other  employes  even  though  the  latter  be  engaged  in 
intrastate  commerce. 

The  power  of  Congress  to  insure  the  efficiency  of  regulations 
ordained  by  it  is  equal  to  the  power  to  impose  the  regula- 
tions; and  prohibiting  the  making  of  agreements  by  those 


CONSTITUTIONAL   DECISIONS  787 

United  States  Supreme  Court 

engaged  in  interstate  commerce  which  in  any  way  limit  a 
liability  imposed  by  Congress  on  interstate  carriers  does 
not  deprive  any  person  of  property  without  due  process  of 
law,  or  abridge  Uberty  of  contract  in  violation  of  the  Fifth 
Amendment. 

QuoBre:  Whether  an  element  of  the  due  process  provisions  of 
the  Fifth  Amendment  is  the  equivalent  of  the  equal  pro- 
tection provision  of  the  Fourteenth  Amendment. 

A  classification  of  railroad  employes,  even  if  including  all 
employes,  whether  subjected  to  peculiar  hazards  incident 
to  operation  of  trains  or  not,  is  not  so  arbitrary  or  un- 
equal as  to  amoimt  to  denial  of  equal  protection  of  the 
laws.  Such  a  classification  does  not  violate  the  due  process 
clause  of  the  Fifth  Amendment  even  if  equal  protection  is 
an  element  of  due  process. 

State  legislation,  even  if  in  pursuance  of  a  reserved  power, 
must  give  way  to  an  act  of  Congress  over  a  subject  within 
the  exclusive  control  of  Congress. 

Until  Congress  acted  on  the  subject,  the  lav/s  of  the  several 
States  determined  the  liability  of  interstate  carriers  for 
injuries  to  their  employes  while  engaged  in  such  com- 
merce; but  Congress  having  acted,  its  action  supersedes 
that  of  the  States,  so  far  as  it  covers  the  same  subject. 
That  which  is  not  supreme  must  yield  to  that  which  is. 

The  inaction  of  Congress  on  a  subject  within  its  power  does 
not  affect  that  power. 

Rights  arising  under  an  act  of  Congress  may  be  enforced,  as 
of  right,  in  the  courts  of  the  States  when  their  jurisdiction, 
as  prescribed  by  local  law,  is  adequate  to  the  occasion. 

When  Congress,  in  the  exertion  of  a  power  confided  to  it  by 
the  Constitution,  adopts  an  act,  it  speaks  for  all  the  people 
and  all  the  States,  and  thereby  establishes  a  policy  for  all, 
and  the  courts  of  a  State  cannot  refuse  to  enforce  the  act 
on  ground  that  it  is  not  in  harmony  with  the  policy  of  that 
State.    Chflin  v.  Houseman,  93  U.  S.  130. 


788    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

A  state  court  cannot  refuse  to  enforce  the  remedy  given  by 
an  act  of  Congress  in  regard  to  a  subject  within  the  domain 
of  Congress  on  the  ground  of  inconvenience  or  confusion. 

The  systems  of  jurisprudence  of  the  State  and  of  the  United 
States  together  form  one  system  which  constitutes  the 
law  of  the  land  for  the  State. 

The  United  States  is  not  a  foreign  sovereignty  as  regards  the 
several  States  but  is  a  concurrent  and,  within  its  juris- 
diction, a  paramount  sovereign.  Claflin  v.  Houseman,  93 
U.  S.  130. 

Existence  of  jurisdiction  in  a  court  implies  the  duty  to  exer- 
cise it  notwithstanding  such  duty  may  be  onerous. 

82  Connecticut,  373,  reversed,  173  Fed.  Rep.  494,  affirmed. 

No.  120  {Mondou  v.  New  York,  New  Haven  &  Hart- 
ford Railroad  Co.). 
This  was  an  action  by  a  citizen  of  Connecticut  against 
a  railroad  corporation  of  that  State  to  recover  for  per- 
sonal injuries  suffered  by  the  plaintiff  while  in  the  de- 
fendant's service.  The  injuries  occurred  in  Connecti- 
cut August  5,  1908,  the  action  was  commenced  in  one 
of  the  Superior  Courts  of  that  State  in  October  fol- 
lowing, and  the  right  of  action  was  based  solely  on  the 
act  of  Congress  of  April  22,  1908  (35  Stat.  65,  c.  149). 
According  to  the  complaint,  the  injuries  occurred  while 
the  defendant,  as  a  common  carrier  by  railroad,  was 
engaged  in  commerce  between  some  of  the  States  and 
while  the  plaintiff,  as  a  locomotive  fireman,  was  em- 
ployed by  the  defendant  in  such  commerce,  and  the 
injuries  proximately  resulted  from  neghgence  of  the 
plaintiff's  fellow  servants,  who  also  were  employed  by 
the  defendant  in  such  commerce.  A  demurrer  to  the 
complaint  was  interposed  upon  the  grounds,  first,  that 
the  act  of  Congress  was  repugnant  in  designated  aspects 


CONSTITUTIONAL  DECISIONS  789 

United  States  Supreme  Court 

to  the  Constitution  of  the  United  States,  and,  second, 
that  even  if  the  act  were  valid  a  right  of  action  there- 
under could  not  be  enforced  in  the  courts  of  the  State. 
The  demurrer  was  sustained,  judgment  was  rendered 
against  the  plaintiff,  the  judgment  subsequently  was 
affirmed  by  the  Supreme  Court  of  Errors  of  the  State 
(82  Connecticut,  373)  upon  the  authority  of  Hoxie  v. 
N.  y.,  N.  H.  &  H.  R.  Co.,  82  Connecticut,  352,  and 
the  plaintiff  then  sued  out  the  present  writ  of  error. 

No.  170  {Northern  Pacific  Railway  Co.  v.  Bahcock). 

This  was  an  action  by  the  personal  representative 
of  a  deceased  employ^  of  a  railroad  corporation  to  re- 
cover, for  the  exclusive  benefit  of  the  surviving  widow, 
for  the  death  of  the  employe,  which  resulted  from  an 
injury  suffered  in  the  course  of  his  employment.  The 
injury  and  death  occurred  in  Montana,  September  25, 
1908,  the  action  was  commenced  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Minnesota,  Oc- 
tober 4,  1909,  and  the  right  of  action  was  based  solely 
on  the  act  of  Congress  before  mentioned.  It  appeared, 
from  the  complaint,  that  the  injury  occurred  while  the 
defendant,  as  a  common  carrier  by  railroad,  was  en- 
gaged in  commerce  between  some  of  the  States,  and 
while  the  deceased,  as  a  locomotive  fireman,  was  em- 
ployed by  the  defendant  in  such  commerce;  that  the  in- 
jury proximately  resulted  from  negligence  of  fellow  serv- 
ants of  the  deceased,  who  also  were  employed  by  the 
defendant  in  such  commerce ;  that  the  deceased  resided 
in  Montana  and  died  without  issue  or  a  surviving  father 
or  mother,  but  leaving  a  widow  and  also  a  sister,  and 
that  if  the  statutes  of  Montana  were  applicable  the  re- 
covery should  be  for  the  equal  benefit  of  the  widow  and 


790    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

sister,  and  not  for  the  exclusive  benefit  of  the  widow,  as 
prayed  in  the  complaint  and  as  provided  in  the  act  of 
Congress.  The  defendant  challenged  the  validity  of  the 
act  by  a  demurrer  to  the  complaint,  and  in  the  subse- 
quent proceedings  insisted  that  the  recovery,  if  any, 
should  be  for  the  benefit  of  the  widow  and  sister  jointly 
and  not  for  the  benefit  of  the  widow  alone,  but  the  de- 
murrer and  the  insistence  were  overruled  and  judgment 
was  rendered  for  the  plaintiff  for  the  exclusive  benefit 
of  the  widow,  as  prayed.  By  a  direct  writ  of  error  the 
defendant  seeks  a  reversal  of  that  judgment. 

Nos.  289,  290  (Walsh  v.  New  York,  New  Haven  &  Hart- 
ford R.  R.  Co.;  New  York,  New  Haven  &  Hartford 
R.  R,  Co,  V.  Walsh). 
These  writs  of  error  relate  to  the  judgment  in  a  single 
case.  It  was  an  action  by  the  personal  representative 
of  a  deceased  employe  of  a  railroad  corporation  to  re- 
cover, for  the  benefit  of  the  surviving  widow  and  chil- 
dren, for  the  death  of  the  employ^,  which  resulted  from 
an  injury  suffered  in  the  course  of  his  employment. 
The  injury  and  death  occurred  in  Connecticut,  Febru- 
ary 11,  1909,  the  action  was  commenced  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Mas- 
sachusetts in  July  following  and  the  right  of  action  as- 
serted in  the  second  count  of  the  declaration  was  based 
on  the  act  of  Congress  before  mentioned.  There  were 
several  other  counts,  but  they  may  be  passed  without 
special  notice.  It  was  charged  in  the  second  count 
that  the  injury  occurred  while  the  defendant,  as  a  com- 
mon carrier  by  railroad,  was  engaged  in  commerce  be- 
tween some  of  the  States  and  while  the  deceased,  in 
the  course  of  his  employment  by  the  defendant  in  such 


CONSTITUTIONAL   DECISIONS  791 

United  States  Supreme  Court 

commerce,  was  engaged  in  replacing  a  drawbar  on  one 
of  the  defendant's  cars  then  in  use  in  such  commerce, 
and  that  the  injury  proximately  resulted  from  negli- 
gence of  fellow  servants  of  the  deceased  in  pushing 
other  cars  against  the  one  on  which  he  was  working.  A 
demurrer  to  that  coimt  challenged  the  validity  of  the 
act  of  Congress,  but  the  demurrer  was  overruled.  The 
defendant  answered,  putting  in  issue  all  that  was  stated 
in  that  count,  and  also  alleging  that  the  deceased,  by 
his  own  negligence,  contributed  to  the  injury  which  re- 
sulted in  his  death  and  therefore  that  the  damages 
should  be  diminished  in  proportion  to  the  amount  of 
negUgence  attributable  to  him.  A  trial  to  the  court 
and  a  jury  resulted  in  a  verdict  and  judgment  for  the 
plaintiff  upon  the  second  count,  and  there  was  a  judg- 
ment for  the  defendant  upon  the  other  counts.  Each 
party  has  sued  out  a  direct  writ  of  error  from  this  court. 
The  defendant  calls  in  question  the  ruling  upon  its  de- 
murrer and  other  ruUngs  in  the  progress  of  the  cause, 
notably  such  as  related  to  the  nature  of  the  employment 
in  which  the  deceased  and  the  fellow  servants  whose 
conduct  was  in  question  were  engaged  at  the  time  of 
the  injury  and  to  the  admeasurement  of  the  damages. 
The  plaintiff  makes  no  complaint  of  the  judgment  upon 
the  second  count  and,  if  it  shall  be  affirmed,  wishes  to 
waive  her  objections  to  the  judgment  upon  the  other 
counts. 

The  act  whose  vaKdity  is  drawn  in  question,  35  Stat. 
65,  c.  149,  and  the  amendment  of  April  5, 1910,  36  Stat. 
291,  c.  143,  are  as  follows: 

"An  Act  Relating  to  the  Hability  of  common  carriers 
by  railroad  to  their  employes  in  certain  cases. 


792    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

"Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled, 
That  every  common  carrier  by  railroad  while  engaging 
in  commerce  between  any  of  the  several  States  or  Ter- 
ritories, or  between  any  of  the  States  and  Territories, 
or  between  the  District  of  Columbia  and  any  of  the 
States  or  Territories,  or  between  the  District  of  Colum- 
bia or  any  of  the  States  or  Territories  and  any  foreign 
nation  or  nations,  shall  be  liable  in  damages  to  any 
person  suffering  injury  while  he  is  employed  by  such 
carrier  in  such  coromerce,  or,  in  case  of  the  death  of 
such  employ^,  to  his  or  her  personal  representative, 
for  the  benefit  of  the  surviving  widow  or  husband  and 
children  of  such  employ^;  and,  if  none,  then  of  such 
employe's  parents;  and,  if  none,  then  of  the  next  of 
kin  dependent  upon  such  employe,  for  such  injury  or 
death  resulting  in  whole  or  in  part  from  the  neghgence 
of  any  of  the  officers,  agents,  or  employes  of  such  carrier, 
or  by  reason  of  any  defect  or  insufficiency,  due  to  its 
negligence,  in  its  cars,  engines,  appliances,  machinery, 
track,  roadbed,  works,  boats,  wharves,  or  other  equip- 
ment. 

''Sec.  2.  That  every  common  carrier  by  railroad  in 
the  Territories,  the  District  of  Columbia,  the  Panama 
Canal  Zone,  or  other  possessions  of  the  United  States 
shall  be  liable  in  damages  to  any  person  suffering  in- 
jury while  he  is  employed  by  such  carrier  in  any  of 
said  jurisdictions,  or,  in  case  of  the  death  of  such  em- 
ploye, to  his  or  her  personal  representative,  for  the 
benefit  of  the  surviving  widow  or  husband  and  children 
of  such  employe;  and,  if  none,  then  of  such  employe's 
parents;  and,  if  none,  then  of  the  next  of  kin  dependent 
upon  such  employe,  for  such  injury  or  death  resulting 


CONSTITUTIONAL   DECISIONS  793 

United  States  Supreme  Court 

in  whole  or  in  part  from  the  negligence  of  any  of  the 
officers,  agents,  or  employes  of  such  carrier,  or  by  rea- 
son of  any  defect  or  insufficiency,  due  to  its  neghgence, 
in  its  cars,  engines,  appliances,  machinery,  track,  road- 
bed, works,  boats,  wharves,  or  other  equipment. 

''Sec.  3.  That  in  all  actions  hereafter  brought  against 
any  such  common  carrier  by  railroad  under  or  by  virtue 
of  any  of  the  provisions  of  this  Act  to  recover  damages 
for  personal  injuries  to  an  employ^,  or  where  such  in- 
juries have  resulted  in  his  death,  the  fact  that  the  em- 
ploy6  may  have  been  guilty  of  contributory  negli- 
gence shall  not  bar  a  recovery,  but  the  damages  shall 
be  diminished  by  the  jury  in  proportion  to  the  amount 
of  negligence  attributable  to  such  employe;  Provided, 
That  no  such  employ^  who  may  be  injured  or  killed 
shall  be  held  to  have  been  guilty  of  contributory  negli- 
gence in  any  case  where  the  violation  by  such  com- 
mon carrier  of  any  statute  enacted  for  the  safety  of 
employes  contributed  to  the  injury  or  death  of  such 
employe. 

''Sec.  4.  That  in  any  action  brought  against  any 
common  carrier  under  or  by  virtue  of  any  of  the  pro- 
visions of  this  Act  to  recover  damages  for  injuries  to, 
or  the  death  of,  any  of  its  employes,  such  employ^  shall 
not  be  held  to  have  assumed  the  risks  of  his  employ- 
ment in  any  case  where  the  violation  by  such  common 
carrier  of  any  statute  enacted  for  the  safety  of  employes 
contributed  to  the  injury  or  death  of  such  employ^. 

"Sec.  5.  That  any  contract,  rule,  regulation,  or  de- 
vice whatsoever,  the  purpose  or  intent  of  which  shall 
be  to  enable  any  common  carrier  to  exempt  itself  from 
any  hability  created  by  this  Act,  shall  to  that  extent 
be  void:  Provided,  That  in  any  action  brought  against 


794    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

any  such  common  carrier  under  or  by  virtue  of  any  of 
the  provisions  of  this  Act,  such  common  carrier  may 
set  off  therein  any  sum  it  has  contributed  or  paid  to 
any  insurance,  rehef  benefit,  or  indemnity  that  may 
have  been  paid  to  the  injured  employ^  or  the  person 
entitled  thereto  on  account  of  the  injury  or  death  for 
which  said  action  was  brought. 

''Sec.  6.  That  no  action  shall  be  maintained  under 
this  Act  unless  commenced  within  two  years  from  the 
day  the  cause  of  action  accrued. 

"Sec.  7.  That  the  term  'common  carrier'  as  used  in 
this  Act  shall  include  the  receiver  or  receivers  or  other 
persons  or  corporations  charged  with  the  duty  of  the 
management  and  operation  of  the  business  of  a  common 
carrier. 

"Sec.  8.  That  nothing  in  this  Act  shall  be  held  to 
limit  the  duty  or  liability  of  common  carriers  or  to  im- 
pair the  rights  of  their  employes  under  any  other  Act 
or  Acts  of  Congress,  or  to  affect  the  prosecution  of 
any  pending  proceeding  or  right  of  action  under  the 
Act  of  Congress  entitled  'An  Act  relating  to  Uability  of 
common  carriers  in  the  District  of  Columbia  and  Ter- 
ritories, and  to  common  carriers  engaged  in  commerce 
between  the  States  and  between  the  States  and  foreign 
nations  to  their  employes'  approved  June  eleventh, 
nineteen  hundred  and  six. 

"Approved  April  22,  1908." 

"An  Act  to  Amend  an  Act  entitled  'An  Act  relating 
to  the  liabihty  of  common  carriers  by  railroad  to  their 
employes  in  certain  cases,'  approved  April  twenty- 
second,  nineteen  hundred  and  eight. 

"Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress 


CONSTITUTIONAL  DECISIONS  795 

United  States  Supreme  Court 

assembled,  That  an  Act  entitled  'An  Act  relating  to 
the  liability  of  common  carriers  by  railroad  to  their  em- 
ployes in  certain  cases,'  approved  April  twenty-second, 
nineteen  hundred  and  eight,  be  amended  in  section  six 
so  that  said  section  shall  read: 

"Sec.  6.  That  no  action  shall  be  maintained  under 
this  Act  unless  commenced  within  two  years  from  the 
day  the  cause  of  action  accrued. 

"Under  this  Act  an  action  may  be  brought  in  a  cir- 
cuit court  of  the  United  States,  in  the  district  of  the 
residence  of  the  defendant,  or  in  which  the  cause  of 
action  arose,  or  in  which  the  defendant  shall  be  doing 
business  at  the  time  of  commencing  such  action.  The 
jurisdiction  of  the  courts  of  the  United  States  under 
this  Act  shall  be  concurrent  with  that  of  the  courts  of 
the  several  States,  and  no  case  arising  under  this  Act 
and  brought  in  any  state  court  of  competent  juris- 
diction shall  be  removed  to  any  court  of  the  United 
States. 

"Sec.  2.  That  said  Act  be  further  amended  by  add- 
ing the  following  section  as  section  nine  of  said  Act : 

"Sec.  9.  That  any  right  of  action  given  by  this  Act 
to  a  person  suffering  injury  shall  survive  to  his  or  her 
personal  representative,  for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  employ^,  and 
if  none,  then  of  such  employe's  parents;  and,  if  none, 
then  of  the  next  of  kin  dependent  upon  such  employ^, 
but  in  such  cases  there  shall  be  only  one  recovery  for 
the  same  injury. 

"Approved,  April  5,  1910." 

Mr.  Donald  G.  Perkins  for  plaintiff  in  error  in  No.  120: 
The  act  of  1906  was  held  unconstitutional  by  this 


796    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

court  because  it  could  not  by  construction  write  into 
the  act  words  to  make  it  read,  "Any  employ^  when 
engaged  in  interstate  commerce,"  which  express  words 
of  limitation  if  contained  in  the  act,  it  was  conceded, 
would  have  rendered  it  constitutional.  Congress  in 
passing  the  act  of  1908  adopted  this  suggestion  and 
used  express  words  of  limitation  to  meet  the  views  of 
the  court. 

So  far  as  the  substantive  right  goes  the  act  of  1908 
does  not  differ  from  the  act  of  1906  and  was  within  the 
power  of  Congress  under  the  decision  of  this  court,  and 
it  is  unnecessary  to  cite  the  cases  and  repeat  the  argu- 
ment there  considered.  Thornton  Employers'  Liability 
Acts,  §§  7,  10  et  seq.;  Employers'  Liahility  Cases,  207 
U.  S.  463;  and  see  Adair  v.  United  States,  208  U.  S.  178. 

The  power  to  create  the  liability  necessarily  includes 
the  power  to  change  any  and  all  rules  in  existence  in  re- 
lation to  the  liability  of  master  to  servant  at  common 
law  or  under  state  statutes. 

Even  the  rules  of  the  common  law  limited  the  power 
of  the  carrier  to  free  itself  entirely  by  contract  from 
liability  for  its  negligence  in  the  carriage  of  passengers 
and  freight,  and  the  legislative  power  of  Congress, 
assuming  the  matter  is  within  its  sphere,  includes  the 
right  to  change  these  rules  of  the  common  law  and  create 
a  new  and  different  rule.  Railroad  Co.  v.  Lockwood,  17 
Wall.  357;  Railroad  Co.  v.  Stevens,  95  U.  S.  655;  Liver- 
pool S.  S.  Co.  V.  Phcmix  Ins.  Co.,  129  U.  S.  397;  Em- 
ployers' Liability  Cases,  207  U.  S.  492;  United  States  v. 
D.  H.  R.  R.  Co.,  213  U.  S.  405. 

There  is  no  violation  of  constitutional  privilege, 
because  the  act  applies  to  railroad  interstate  carriers 
alone.   Missouri  Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205. 


CONSTITUTIONAL   DECISIONS  797 

United  States  Supreme  Court 

The  act  of  Congress  did  not  create  an  original  juris- 
diction in  the  Superior  Court  but  it  did  create  a  substan- 
tial right  which  accrued  to  a  citizen  of  Connecticut,  and 
the  Superior  Court  as  a  court  of  general  jurisdiction  had 
jurisdiction  to  adjudicate  the  right.  Ex  parte  McNeil, 
13  Wall.  423;  Cook  v.  Whipple,  55  N.  Y.  164;  Clafiin  v. 
Houseman,  13  Wall.  137. 

Congress  intended  that  the  state  courts  should  exer- 
cise a  concurrent  jurisdiction,  and  that  the  jurisdiction 
of  the  Circuit  Court  shall  be  concurrent  with  that  of  the 
state  courts  in  actions  under  this  act,  which  was  merely 
declaratory  of  the  law  as  it  existed.  See  amendment  of 
1910,  Public  No.  117,  H.  R.  17,263. 

It  was  evidently  the  intent  of  Congress  that  the  state 
court  should  have  a  concurrent  jurisdiction,  for  unless 
this  is  so  a  party  having  a  claim  of  less  than  $2,000 
would  be  without  a  remedy,  for  the  Circuit  Court  of  the 
United  States  has  no  jurisdiction  where  the  damages 
claimed  are  less  than  $2,000,  See  act,  March  3, 1875,  c. 
137,  §1,  18  Stat.  470;  §  969,  U.  S.  Stat.;  act  of  1887-8; 
24  Stat.  552  and  25  Stat.  443. 

The  power  to  regulate  interstate  commerce  is  one  of 
the  powers  which  the  State  surrendered  to  the  United 
States,  and  assuming  that  the  act  in  question  is  constitu- 
tional and  within  the  power  of  Congress  to  regulate  in- 
terstate commerce,  then  the  power  of  Congress  is  su- 
preme and  paramount  to  that  of  the  State  and  supersedes 
the  law  and  policy  of  the  State  of  Connecticut  on  the 
same  subject,  so  that  the  State  has  no  law  and  no  policy 
on  this  subject  except  the  act  of  Congress.  Sinnott  v. 
Davenport  et  at.,  22  How.  242;  Gulf  &c.  R.  R.  Co.  v. 
Helfley,  158  U.  S.  98,  103;  Ail  &c.  Tel.  Co.  v.  Phila- 
delphia, 190  U.  S.  160,  162;  Miss.  R.  R.  Comrs.  v.  III. 


798    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Central  R.  R.,  203  U.  S.  335;  El  Paso  &c.  Ry,  Co.  v. 
Gutierrez,  215  U.  S.  87. 

The  oath  of  office  of  the  judges  of  the  Connecticut 
Supreme  Court  requires  them  to  support  the  Constitu- 
tion of  the  United  States. 

Even  in  enforcing  transitory  actions  either  in  contract 
or  tort  arising  under  the  laws  of  a  foreign  State,  which 
is  done  as  an  act  of  comity  between  foreign  States,  the 
fact  that  the  foreign  law  is  different  is  not  sufficient  to 
prevent  jurisdiction.  Walsh  v.  N.  Y.  &  N.  E.  R.  R.  Co., 
160  Massachusetts,  571 ;  Nor.  Pac.  Ry.  Co.  v.  Babcock, 
154  U.  S.  197;  Dennick  v.  R.  R.  Co.,  103  U.  S.  18. 

Even  if  the  plaintiff's  right  of  action  were  to  be 
treated  as  arising  under  the  laws  of  a  foreign  State,  the 
Connecticut  court  could  not  deny  him  a  remedy  from 
mere  whim  or  because  the  judges  did  not  hke  the  law, 
but  it  could  only  be  done  on  established  principles  of  law 
governing  all  cases,  that  to  grant  him  his  remedy  would 
be  against  the  public  policy  or  interests  of  the  State, 
not  simply  against  the  interest  of  the  defendant,  and 
the  following  cases  show  that  the  conclusion  of  the  court 
that  it  could  not  entertain  jurisdiction  was  unsound 
and  not  in  accord  with  established  principles.  Dennick 
v.  Railroad  Co.,  103  U.  S.  18;  Missouri  Pacific  Ry.  Co.  v. 
Mackey,  127  U.  S.  205;  Huntington  v.  Attrill,  146  U.  S. 
657;  Northern  Pacific  R.  R.  Co.  v.  Babcock,  154  U.  S. 
190;  Ward  v.  Jenkins,  10  Mete.  588;  Higgins  v.  Railroad 
Co.,  155  Massachusetts,  176;  Walsh  v.  Railroad  Co., 
160  Massachusetts,  571;  King  v.  Sarria,  69  N.  Y.  31; 
Leonard  v.  Columbia  &  Co.,  84  N.  Y.  48;  Stoeckman  v. 
T.  H.  &  R.  R.  Co.,  15  Mo.  App.  503;  C.  &  0.  R.  R.  Co.  v. 
Am.  Ex.  Bank,  92  Virginia,  154. 

But  the  plaintiff's  case  is  much  stronger  than  if  he 


CONSTITUTIONAL   DECISIONS  799 

United  States  Supreme  Court 

were  suing  under  a  foreign  law  because  the  whole  foun- 
dation of  the  comity  rule  as  to  transitory  actions  is  the 
principle  that  the  law  of  a  State  has  no  extraterritorial 
force  and  therefore  can  be  enforced  not  of  right  but  only 
as  an  act  of  comity,  while  this  plaintiff  is  a  citizen  of 
Connecticut  and  sues  in  the  courts  of  his  own  State  on  a 
cause  of  action  arising  in  the  State  under  the  act  of 
Congress,  which  is  the  supreme  law  of  Connecticut,  and 
governs  the  public  policy  of  the  State  on  that  point. 
Blythe  v.  Hinckley,  173  U.  S.  508:  Clafiin  v.  Houseman, 
93  U.  S.  136. 

This  is  a  right  under  United  States  law  just  as  much  as 
is  a  discharge  in  bankruptcy  granted  by  a  court  of  the 
United  States  under  the  United  States  bankrupt  law  and 
such  a  discharge  is  vaHd  in  the  courts  of  all  the  States, 
Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181,  and  the 
denial  of  the  right  presents  a  Federal  question.  Strader 
V.  Baldwin,  9  How.  2QI',  El  Paso  &c.  Ry.  Co.  v.  Gutierrez, 
215  U.  S.  87.  St.  Louis  &c.  R.  R.  Co.  v.  Taylor,  210 
U.  S.  285,  distinguished. 

The  Connecticut  Supreme  Court  had  no  power  to 
legislate  or  estabUsh  the  pubhc  poUcy  of  the  State  but 
its  duty  was  to  declare  the  law  and  it  was  bound  by  the 
Constitution  and  laws  of  the  United  States.  That  the 
plaintiff  was  entitled  to  maintain  his  action  in  the  state 
court  is  estabhshed  by  Ex  parte  McNeil,  13  Wall.  243 ; 
Teal  V.  Felton,  12  How.  292;  Claflin  v.  Houseman,  93 
U.  S.  136;  Charlotte  Nat.  Bank  v.  Morgan,  132  U.  S.  141, 
144;  Defiance  Water  Co.  v.  Defiance,  191  U.  S.  184; 
Raisler  v.  Oliver,  97  Alabama,  710;  Ordway  v.  Central 
Nat.  Bank,  47  Maryland,  245;  Schuyler  Nat.  Bank  v. 
Bollong,  24  N.  W.  827;  Singer  v.  Bedstead  Co.,  65  N.  J. 
Eq.  293;  Cook  v.  Whipple  et  al,  55  N.  Y.  164;  People  v. 


800    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Welch,  141  N.  Y.  273;  Bletz  v.  Columbia  Nat  Bank,  87 
Pa.  St.  87;  Hartley  v.  United  States,  3  Hayw.  (Tenn.) 
45;  Kansas  City  &c.  v.  Flippo,  138  Alabama,  487; 
Mobile  &c.  Ry.  v.  Bramberg,  141  Alabama,  258;  Wilson 
V.  Southern  Ry.  Co.,  172  Fed.  Rep.  478. 

Mr.  Edward  D.  Robbins,  with  whom  Mr.  Joseph  F. 
Berry  was  on  the  brief,  for  defendant  in  error  in  No.  120: 

The  power  to  regulate  commerce  among  the  several 
States  is  exclusive  wherever  the  matter  is  national  in 
its  character  or  admits  of  one  system  or  plan  of  regula- 
tion. Cooley  V.  Board  of  Wardens,  12  How.  319;  Welton 
V.  Missouri,  91  U.  S.  280;  Kendall  v.  United  States,  12 
Pet.  524,  618;  Valarnio  v.  Thompson,  7  N.  Y.  579. 

There  can  be  no  question  in  this  case  that  the  act  it- 
self is  national  in  its  character  and  admits  of  only  one 
system,  which,  to  be  effective,  must  be  uniform  in  its  ap- 
plication. 

Where  jurisdiction  may  be  conferred  on  the  United 
States  courts,  it  may  be  made  exclusive  where  not  so 
by  the  Constitution  itself,  but,  if  exclusive  jurisdiction 
be  neither  expressed  nor  impUed,  the  state  courts  have 
concurrent  jurisdiction  whenever  by  their  own  constitu- 
tion they  are  competent  to  take  it.  Claflin  v.  Houseman, 
93  U.  S.  130.  See  also  Hoxie  v.  N.  Y.,  N.  H.  &  H.  R.  R. 
Co.,  82  Connecticut,  356;  Chicago  &c.  R.  Co.  v.  Whitton, 
13  Wall.  288;  Plaquemines  Fruit  Co.  v.  Henderson,  170 
U.  S.  521;  Teal  v.  Felton,  12  How.  292;  Dallemagne  v. 
Moisan,  197  U.  S.  174;  Robertson  v.  Baldwin,  165  U.  S. 
278. 

Congress  cannot  confer  jurisdiction  upon  the  state 
courts,  Martin  v.  Hunter,  10  Wheat.  334;  Houston  v. 
Moore,  5  Wheat.  27;  and  state  courts  will  not  or  cannot 


CONSTITUTIONAL   DECISIONS  801 

United  States  Supreme  Court 

have  jurisdiction  of  cases  involving  a  penalty  under 
United  States  laws.  Dudley  v.  Mayhew,  3  N.  Y.  9,  15; 
Davidson  v.  Champion,  7  Connecticut,  224;  State  v. 
Curtiss,  35  Connecticut,  374;  United  States  v.  Lathrop, 
17  Johnson  {'N.Y.),4i,8;  Ex  parte  Knowles,  5  California, 
301;  Kent's  Commentaries,  *  399;  Rushworth  v.  Judges, 
58  N.  J.  L.  97. 

As  Congress  cannot  vest  any  of  the  judicial  power  of 
the  United  States  in  the  state  courts,  it  is  bound  to 
create  inferior  courts  in  which  to  vest  jurisdiction  in 
cases  arising  under  its  acts.  These  courts  have  been 
created  and  cases  arising  under  the  act  should  be  tried 
in  courts  ordained  and  established  by  the  Congress, 
which  are  adapted  better  to  enforce  the  act  in  a  uniform 
manner  than  courts  estabUshed  by  the  State. 

While  conceding  that  Congress  may  have  intended 
the  state  courts  to  assume  jurisdiction.  Congress  cannot 
compel  the  state  court  to  entertain  it  against  its  wish. 

The  reservation  of  the  States  respectively  by  the 
Tenth  Amendment  means  the  reservation  of  the  right 
of  sovereignty  which  they  respectively  possessed  before 
the  adoption  of  the  Constitution  and  which  they  had 
not  parted  from  by  that  instrument ;  and  any  legislation 
by  Congress  beyond  the  hmits  of  the  power  delegated 
would  be  trespassing  upon  the  rights  of  the  States  or  the 
people  and  would  not  bfe  the  supreme  law  of  the  land 
but  null  and  void.  United  States  v.  Williams,  194  U.  S. 
295;  Ex  parte  Merryman,  17  Fed.  Cases,  9,487;  Collector 
V.  Day,  11  Wall.  124;  Calder  v.  5uZZ,  3  DaUas  (U.S.), 
388. 

Art.  V,  §  1,  of  the  Connecticut  constitution  prescribes 
how  the  judicial  power  of  the  State  shall  be  vested  and 
exercised,  and  it  cannot  be  within  the  power  of  Congress 
51 


802    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

to  prescribe  that  a  court  of  Connecticut  must  assume 
jurisdiction  of  a  cause  of  action  based  upon  an  act  the 
terms  of  which  are  entirely  incompatible  with  its  system 
of  jurisprudence.    Kent's  Commentaries,  12th  ed.*  403. 

The  power  of  the  state  courts  to  determine  what 
cases  they  will  accept  jurisdiction  of  is  absolute,  for  the 
power  to  maintain  a  judicial  department  is  one  incident 
to  the  inherent  sovereignty  of  each  State,  in  respect  to 
which  the  State  is  as  independent  of  the  General  Govern- 
ment as  that  Government  is  independent  of  the  States. 
As  to  that  power  the  two  governments  are  on  an  equality. 
Collector  v.  Day,  11  Wall.  113,  126;  Stearns  v.  United 
States,  2  Paine,  300;  Sherman  v.  Bingham,  Fed.  Cases, 
No.  12,762;  Beamn's  Petition,  33  N.  H.  89;  Stephens, 
Petitioner,  4  Gray,  559;  In  re  Woodbury,  98  Fed.  Rep. 
833. 

The  exercise  of  jurisdiction  in  this  case  in  the  state 
courts  is  entirely  incompatible  with  the  laws  of  the 
State  and  the  act  has  been  deemed  to  be  both  impolitic 
and  unjust. 

There  are  vital  reasons  why  the  state  courts  are  not 
obliged  to  assume  jurisdiction  of  this  action  and  one  of 
the  principal  reasons  is  that  the  act,  to  be  enforced  in 
the  state  courts,  can  be  enforced  only  at  the  expense  of 
disregarding  many  of  the  requirements  of  the  law  in 
Connecticut  both  in  respect  to  'pleadings  and  in  respect 
to  evidence. 

Congress  cannot  provide  rules  of  evidence  which  the 
state  courts  are  bound  to  follow.  People  v.  Gates,  43 
N.  Y.  40;  Caldwell  v.  N,  J.  Steamboat  Co.,  47  N.  Y.  282; 
Moore  v.  Moore,  47  N.  Y.  467;  Bowlin  v.  Commonwealth, 
2  Bush  (Ky.),  5;  s.  c,  92  Am.  Dec.  468;  Carpenter  v. 
Snelling,  97  Massachusetts,  452. 


CONSTITUTIONAL   DECISIONS  803 

United  States  Supreme  Court 

Mr.  J.  C.  McReynolds,  special  assistant  to  the  At- 
torney General,  by  leave  of  the  court,  filed  a  brief  for 
the  United  States  as  amicus  curice  in  No.  120. 

The  principles  of  law  necessary  for  solving  the  ques- 
tions in  issue  have  been  definitely  determined  by  this 
court. 

Congress  has  power  to  legislate  concerning  the  mutual 
rights  and  Uabilities  of  master  and  servant  when  both 
are  actually  engaged  in  interstate  commerce.  Howard 
V.  Illinois  Central  R.  R.  Co.,  207  U.  S.  463;  Adair  v. 
United  States,  208  U.  S.  161. 

The  Employers'  Liability  Act  of  1906  was,  in  El  Paso 
&  N.  E.  Ry.  Co.  V.  Gutierrez,  215  U.  S.  87,  96,  declared 
valid  so  far  as  it  relates  to  commerce  within  the  Terri- 
tories where  the  inhibitions  of  the  Fifth  Amendment 
apply  with  full  force.  Rassmu^sen  v.  United  States,  197 
U.  S.  516.  Objections  predicated  upon  the  Fifth  Amend- 
ment, which  are  now  urged  against  the  act  of  1908, 
apply  with  equal  force  to  the  earUer  act,  and  therefore 
must  be  considered  as  overruled. 

In  Atlantic  Coast  Line  R.  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186,  this  court  upheld  the  Carmack  amend- 
ment as  a  proper  regulation  of  interstate  commerce  and 
not  in  violation  of  the  Fifth  Amendment;  and  see  Mo- 
bile &c.  Railroad  Co.  v.  Turnipseed,  219  U.  S.  35;  L.  & 
N.  Railroad  v.  Melton,  218  U.  S.  36;  Griffith  v.  Connec- 
ticut, 218  U.  S.  572;  German  Alliance  Ins.  Co.  v.  Hale, 
219  U.  S.  307,  as  to  general  classification  of  railway 
employes  being  a  proper  exercise  of  the  pohce  power. 

The  relationship — the  reciprocal  rights  and  habilities 
— between  a  railroad  carrier  and  its  employes  arises  out 
of  agreement;  and  when  both  parties  are  actually  en- 
gaged in  interstate  commerce  this  agreement  is  an 


804    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

essential  part  thereof  over  which  Congress  has  plenary 
power  of  regulation  subject  only  to  the  restrictions  of 
the  Constitution.  Beven  on  Employers'  Liability,  3; 
Rueggs  on  Employers'  Liability,  7th  ed.;  Mecliem  on 
Agency,  §  1 ;  Cooley  on  Torts,  531 ;  Farwell  v.  Boston 
&  Worcester  R.  R.  Co.,  4  Met.  49,  56;  Priestley  v.  Fowler, 
3  Mees.  &  W.  1 ;  Murray  v.  So.  Car.  R.  R.  Co.,  1  Mc- 
Mullan,  385;  Thomas  v.  Quariermaine,  18  Q.  B.  D. 
685;  Chicago  &c.  Ry.  Co.  v.  Ross,  112  U.  S.  377,  382; 
Nor.  Pac.  R.  R.  Co.  v.  Herbert,  116  U.  S.  642,  647;  Nor. 
Pac.  R.  R.  Co.  V.  Hambly,  154  U.  S.  349;  Article  by 
Prof.  Mechem  in  The  Illinois  Law  Review,  Novem- 
ber, 1909. 

What  constitutes  interstate  commerce  and  what  is  a 
regulation  of  it  are  practical  questions  to  be  decided  in 
view  of  the  rights  involved  in  each  case.  Dozier  v.  Ala- 
bama, 218  U.  S.  124.  The  operation  of  a  railroad  carrier 
in  interstate  commerce  is  impossible  without  servants — 
the  human  instrumentalities  who  must  perform  the 
necessary  acts.  The  lack  of  power  to  control  agreements 
with  such  servants  by  prescribing  their  terms  or  other- 
wise would  result  in  inability  completely  and  effectually 
to  regulate  the  course  and  current  of  commerce  as  ordi- 
narily conducted  through  the  instrumentality  of  rail- 
roads. Congress  has  plenary  power  to  regulate  whatever 
is  interstate  commerce,  subject  only  to  the  restrictions  of 
the  Constitution.  United  States  v.  Delaware  &  Hudson 
Co.,  213  U.  S.  366. 

In  the  absence  of  action  by  Congress,  the  States  may 
legislate  concerning  the  relationship — the  rights  and 
liabilities — between  master  and  servant  operating  in 
interstate  commerce.  But  the  general  subject  is  within 
the  control  of  Congress  whenever  it  may  choose  to  exer- 


CONSTITUTIONAL  DECISIONS  805 

United  States  Supreme  Court 

cise  its  power.  Martin  v.  Pittsburg  &c.  R.  R.,  203  U.  S. 
284,  294;  Sherlock  v.  Ailing,  93  U.  S.  99,  103,  107;  Old 
Dominion  S.  S.  Co.  v.  Gilmore,  207  U.  S.  398;  West. 
Un.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S. 
406. 

State  statutes  have  been  upheld  only  where  Congress 
left  the  matter  untouched  and  open  to  state  regulation. 
When  the  public  good  requires  such  legislation  it  must 
come  from  Congress  and  not  from  the  States.  Hall  v. 
De  Cuir,  95  U.  S.  485;  Chiles  v.  Chesapeake  &  Ohio  Ry. 
Co.,  218  U.  S.  71 ;  Louismlle,  N.  0.  &  T.  Ry.  Co.  v.  Mis- 
sissippi, 133  U.  S.  5S7  ;Plessy  v.  Ferguson,  163  U.  S.  537, 
540;  N.  J.  S.  Co.  v.  Brockett,  121  U.  S.  637;  Hutchinsoa 
on  Carriers  (3d  ed.),  §§  997,  1077. 

A  contract  for  the  transportation  of  goods  between 
different  States  by  vessel  or  railroad  is  a  part  of  inter- 
state commerce  whose  terms  may  be  prescribed  or 
regulated  by  act  of  Congress;  The  Delaware,  161  U.  S. 
459,  471 ;  and  as  to  the  Harter  Act,  passed  in  1893,  see 
Martin  v.  The  Southwark,  191  U.  S.  1 ;  Patton  v.  T.  &  P. 
Ry.  Co.,  179  U.  S.  658,  663. 

As  to  the  Carmack  amendment,  see  Atlantic  Coast 
Line  R.  R.  v.  Riverside  Mills,  219  U.  S.  186. 

The  contract  for  service  between  a  sailor  and  a  vessel 
engaged  in  foreign  commerce  is  part  thereof  and  its 
terms  may  be  directly  prescribed  by  Congress.  Patter- 
son V.  The  Eudora,  190  U.  S.  169,  176;  Robertson  v. 
Baldwin,  165  U.  S.  275. 

Congress  may  prescribe  the  character  of  instruments 
to  be  used  in  interstate  commerce  and  declare  the  result 
of  a  failure  so  to  do  upon  the  agreement  of  employment 
between  master  and  servant.  Johnson  v.  So.  Pacific  Co., 
196  U.  S.  1;  Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.,  205 


806    beadbury's  workmen's  compensation  law 

United  States  Supreme  Court 

U.  S.  1;  St.  Louis  &c.  Ry,  Co,  v.  Taylor,  210  U.  S.  281, 
294,  295. 

Mr.  Charles  W.  Bunn  for  plaintiff  in  error  in  No.  170: 

Probably  the  interests  of  the  railway  company,  plain- 
tiff in  error,  would  be  promoted  by  having  the  act  of 
Congress  sustained,  thus  securing  to  it  at  least  one  uni- 
form law  of  liability  throughout  the  States  in  lieu  of  the 
differing  laws  of  many  States.  But  the  fact  cannot  be 
ignored  that  for  over  a  century  it  has  been  supposed 
that  laws  such  as  this  fell  within  the  exclusive  power 
of  the  States,  and  that  this  view  is  held  still  by  a  large 
proportion  of  the  bar  and  people.  In  fact,  while  defend- 
ant in  error  as  administratrix  is  maintaining  this  action 
under  this  law,  a  sister  of  deceased,  not  a  party  to  this 
action,  asserts  the  liability  of  the  railway  company  to 
her  under  the  Montana  statute. 

The  act  of  Congress  rests  wholly  upon  the  power  of 
Congress  to  regulate  commerce  among  the  States,  which 
is  the  power  to  prescribe  the  rules  by  which  commerce 
is  to  be  governed.  Adair  v.  United  States,  208  U.  S.  161, 
177.  See  article  by  Mr.  Hackett  in  Harvard  Law  Re- 
view for  November,  1908.  From  the  adoption  of  the 
Constitution  until  recently  it  has  been  understood  uni- 
versally that  the  exclusive  power  is  in  the  States  to  say 
for  what  negligence  a  master  shall  be  liable  to  a  servant, 
what  shall  be  the  effect  of  the  servant's  contributory 
negligence,  what  shall  be  the  master's  liability  for  the 
acts  of  fellow  servants,  whether  any  pecuniary  liability 
shall  arise  out  of  death  caused  by  negligence,  what  shall 
be  the  measure  of  damage  in  death  and  other  negligence 
cases,  and  who  shall  receive  the  fruits  of  recovery. 

While  the  power  of  Congress  is  supreme  in  its  sphere, 


CONSTITUTIONAL  DECISIONS  807 

United  States  Supreme  Court 

it  does  not  extend  beyond  those  subjects  which  pertain 
immediately  and  directly  to  commerce.  The  utmost  in- 
genuity has  failed  to  prove  how  commerce  mil  directly 
be  promoted  or  affected,  or  the  movement  of  goods  or 
passengers  by  rail  directly  influenced,  by  any  rule  gov- 
erning the  master's  liability  to  his  servant  for  defects  in 
appliances,  or  for  the  acts  of  fellow  servants,  or  establish 
the  effect  of  the  servant's  own  negligence,  or  determining 
when  a  liability  arises  for  negligent  death,  or  the  extent 
of  the  damages,  or  the  persons  to  whom  the  damages 
shall  go. 

The  act  is  plainly  distinguishable  from  safety  appli- 
ance laws  and  from  laws  prescribing  tests  for  qualifica- 
tion of  trainmen.  Such  laws  have  an  obvious  and  direct 
relation  to  commerce.  They  make  transportation  both 
of  passengers  and  freight  safer  and  more  reliable. 

Congress  may  have  authority  to  regulate  in  some  re- 
spects the  relation  of  master  and  servant,  but  it  has  no 
such  authority  except  to  make  rules  really  and  substan- 
tially affecting  commerce,  and  the  rules  laid  down  in  the 
act  in  question  do  not  so  affect  commerce. 

Regulation  of  liability  for  injury  to  an  employ^ 
merely  because  the  master  is  engaged  in  interstate 
commerce,  or  because  the  employe  is  so  engaged,  is  in- 
admissible, the  particular  regulation  not  being  a  rule  of 
commerce  or  having  any  relation  to  commerce;  or  at 
most  such  a  shadowy  and  indirect  relation  as  not  to  be  a 
regulation  of  commerce  within  the  power  of  Congress. 
County  of  Mobile  v.  Kimball,  102  U.  S.  691;  Gloucester 
Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196;  In  re  Rahrer, 
140  U.  S.  545;  Bobbins  v.  Shelby  Taxing  District,  120 
U.  S.  489;  United  States  v.  Knight  Co.,  156  U.  S.  1; 
Hooper  v.  California,  155  U.  S.  648. 


S08      BRADBURY*S   WORKMEN'S   COMPENSATION   LAW 
United  States  Supreme  Court 

The  act  of  Congress  probably  conflicts  with  the  law  of 
every  State,  with  some  in  one  particular,  with  others  in 
another.  It  would  be  impossible  to  enumerate  such  con- 
flicts; but  some  of  them  are :  in  respect  of  the  liability  for 
the  acts  of  fellow  servants;  in  creating  an  action  for  death 
practically  with  unlimited  damages;  in  distribution  of 
proceeds  in  cases  of  recovery  for  death ;  in  respect  of  the 
effect  of  contributory  negligence  and  assumption  of  risk; 
in  providing  that  no  contract  may  be  made  between  the 
parties  contrary  to  the  terms  of  the  act;  and  in  giving 
two  years  to  bring  action  and  in  not  requiring,  as  the 
laws  of  some  States  do,  any  preliminary  notice  to  the 
defendant. 

Congress  has  assumed  to  enter  the  field  of  the  admin- 
istration of  deceased  persons.  In  some  States  damages 
for  death  are  not  subject  to  the  claims  of  creditors;  in 
others  it  is  believed  that  they  are;  but  if  this  act  is  valid 
it  seems  to  remove  that  question  from  state  control. 
Some  States  give  the  damages  to  the  heirs,  some  to  the 
next  of  kin,  and  some  to  the  widow.  The  rules  in  the 
States  vary  widely  in  determining  who  is  an  heir  or  next 
of  kin  entitled  to  share  in  the  recovery. 

In  this  particular  case  the  law  of  Montana  would  give 
the  damages  half  to  the  widow  and  half  to  the  sister;  but 
the  act  of  Congress  assumes  to  overrule  these  state 
statutes  in  the  case  at  bar  giving  the  whole  damage  to 
the  widow  to  the  exclusion  of  the  sister,  instead  of  divid- 
ing it  between  them. 

Conflicts  between  the  act  of  Congress  and  laws  of  the 
States  result  in  annulling  the  acts  of  the  States,  providing 
that  of  Congress  is  valid,  because  if  this  is  a  regulation 
of  commerce  it  is  so  well  settled  as  now  to  be  elementary, 
that  Congress  once  having  acted,  state  power  over  the 


CONSTITUTIONAL   DECISIONS  809 

United  States  Supreme  Court 

whole  subject  (if  indeed  the  States  ever  had  any  power) 
is  ended ;  and  any  legislation  by  a  State  creating  a  liability 
of  railway  companies  to  their  employes  engaged  in  inter- 
state commerce  would  be  an  unlawful  interference  with 
and  burden  upon  such  commerce.  On  this  clear  prin- 
ciple the  plaintiff  in  error  will  not  be  liable  to  the  sister 
of  deceased,  or  to  an  administrator  appointed  for  her 
benefit  under  the  laws  of  Montana,  provided  this  judg- 
ment is  affirmed. 

Plaintiff  in  error  agrees  with  the  Attorney  General 
that  railway  companies  have  no  employes  who  are  not 
engaged  in  interstate  commerce,  unless  indeed  they 
carry  on  mining  or  some  business  apart  from  transpor- 
tation. The  whole  line  of  a  railroad  extending  through 
several  States  constitutes  a  single  property  and  of 
necessity  must  be  operated  as  such. 

If  the  act  in  question  is  valid  all  employes  of  railways, 
at  least  all  employed  in  or  about  the  transportation 
carried  on  by  railways,  are  taken  out  of  the  jurisdiction 
by  the  States  of  which  they  are  citizens,  to  the  extent 
of  all  the  matters  regulated  by  the  act.  The  same  will 
follow,  if  Congress  chooses  to  act  as  to  employes  of  man- 
ufacturers and  merchants  engaged  in  interstate  com- 
merce. 

Mr.  Samuel  A,  Anderson  for  defendant  in  error  in 
No.  170: 

Congress  has  power,  under  the  commerce  clause,  to 
regulate  the  relation  of  master  and  servant  as  between 
an  interstate  carrier  and  an  interstate  servant.  Em- 
ployers' Liability  Cases,  207  U.  S.  463;  Adair  v.  United 
States,  208  U.  S.  161 ;  Gibbons  v.  Ogden,  9  Wheat.  1,  196; 
El  Paso  &  Northeastern  Ry.  Co.  v.  Gutierrez,  215  U.  S. 


810    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

87;  Peirce  v.  Van  Dusen,  78  Fed.  Rep.  693;  The  Daniel 
Ball,  10  Wall.  557;  Oilman  v.  Philadelphia,  3  Wall.  713, 
724,  725;  United  States  v.  Combs,  12  Pet.  72,  78;  Cooky 
V.  Board  of  Wardens  &c.,  12  How.  299;  Patterson  v. 
Bark  Eudora,  190  U.  S.  169. 

Congress  has  the  power  to  regulate  the  relation  of 
master  and  servant  as  between  an  interstate  carrier 
and  an  intrastate  employe.  See  Missouri  Pacific  Ry.  Co. 
V.  Mackey,  127  U.  S.  205;  Minn.  &  St.  Louis  Ry.  Co.  v. 
Herrick,  127  U.  S.  210;  Chicago,  Kansas  &  Western  R.  R. 
Co.  V.  Pontius,  157  U.  S.  209;  Tullis  v.  Lake  Erie 
&c.  R.  R.  Co.,  175  U.  S.  348;  Baltimore  &  Ohio  R.  R.  Co. 
V.  Baugh,  149  U.  S.  368;  Minnesota  Iron  Company  v. 
Kline,  199  U.  S.  593. 

The  power  of  Congress  to  regulate  commerce  between 
the  States  is  as  great  as  to  regulate  commerce  with 
foreign  nations,  the  power  in  both  instances  originating 
solely  from  the  commerce  clause.  See  Brown  v.  Houston, 
114  U.  S.  622;  Bowman  v.  Chicago  &c.  Ry.  Co.,  125  U.  S. 
465;  Crutcher  v.  Kentucky,  141  U.  S.  47;  Pittsburg  & 
Southern  Coal  Co.  v.  Bates,  156  U.  S.  577. 

The  fact  that  the  act  declares  that  such  common  car- 
riers shall  be  liable  for  injuries  to  interstate  servants 
caused  through  the  negligence  of  any  employe  does  not 
tend  to  impair  its  validity.  Watson  v.  St.  Louis,  I.  M. 
&  S.  Ry.  Co.,  169  Fed.  Rep.  942,  950. 

Under  the  decisions  on  the  Safety  Appliance  Acts,  if 
any  car  in  a  train  is  being  used  in  interstate  commerce, 
all  cars  in  that  train  must  be  equipped  according  to  the 
provisions  of  the  acts,  whether  such  cars  are  being  used 
or  were  ever  used  in  carrying  interstate  merchandise. 
See  Johnson  v.  Southern  Pacific  Ry.  Co.,  196  U.  S.  1; 
Schlemmer  v.  Buffalo  &c.  Ry.  Co.,  205  U.  S.  1 ;  Wabash 


CONSTITUTIONAL  DECISIONS  811 

United  States  Supreme  Court 

Railway  Company  v.  United  States,  and  Elgin  J.  &  E. 
Ry.  Co.  V.  UniUd  States,  168  Fed.  Rep.  1. 

Congress  has  power  to  impose  liability  upon  an  inter- 
state carrier  by  railroad  in  favor  of  an  interstate  servant 
injured  through  the  negUgence  of  other  employes  work- 
ing at  and  about  and  in  connection  with  such  inter- 
state railroad,  irrespective  of  the  employment  of  the 
servant  chargeable  with  careless  acts  resulting  in  such 
injury.  Gilman  v.  Philadelphia,  3  Wall.  713;  In  re 
Debs,  158  U.  S.  564. 

The  act  in  question  is  not  invahd  because  confined  to 
common  carriers  by  railroad  engaged  in  interstate  com- 
merce, nor  because  it  embraces  all  interstate  employes 
on  interstate  roads,  when  injured  while  engaged  in  such 
service,  without  regard  to  the  character  of  such  service. 
Patterson  v.  Bark  Eudora,  190  U.  S.  169;  Kiley  v.  Chi- 
cago, Milwaukee  &  St.  Paul  Ry.  Co.,  138  Wisconsin,  215. 

Sections  3  and  4  of  the  act,  the  first  establishing  the 
doctrine  of  comparative  negUgence,  the  second  abro- 
gating the  doctrine  of  assumption  or  risk  in  certain  cases 
are  valid  enactments.  Johnson  v.  Southern  Pacific 
Ry.  Co.,  196  U.  S.  1 ;  Schlemmer  v.  Buffalo  &c.  Ry.  Co., 
205  U.  S.  1. 

It  was  the  aim  of  Congress  to  do  exact  justice.  As  to 
wisdom  of  such  a  rule  as  applied  to  marine  torts,  see  The 
Max  Morris,  137  U.  S.  1;  The  Mystic,  44  Fed.  Rep.  399. 
Whether  or  not  these  provisions  are  equitable  or  unjust 
is  a  matter  concerning  Congress  and  not  the  courts. 
St.  Louis  &  Iron  Mountain  Ry.  Co.  v.  Taylor,  210  U.  S. 
281,  295. 

Section  5,  limiting  the  right  of  contract  and  providing 
that  no  rule,  etc.,  shall  be  permitted  to  exempt  such 
common  carriers  from  any  liability  created  by  said  act, 


812    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

is  a  valid  enactment.  Kiley  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  138  Wisconsin,  215. 

Sections  3,  4  and  5  are  clearly  separable  from  the  main 
body  of  the  statute  and,  even  if  one  or  all  should  be  held 
invalid,  nevertheless,  the  main  statute  could  and  should 
be  sustained,  notwithstanding  such  invalidity. 

The  statute  is  in  keeping  with  modern  thought  and 
is  a  wise  and  humane  enactment.  Many  States  have 
legislated  along  similar  lines  and  probably  in  no  State 
does  the  common  law  still  exist  in  its  full  force  and 
effect.  All  men,  including  all  persons  engaged  in  the 
business  of  transportation,  now  concede  that  the  general 
object  sought  by  the  enactment  of  the  statute  is  one 
that  should  meet  with  universal  approval. 

The  Attorney  General,  by  leave  of  the  court,  filed  a 
brief  for  the  United  States,  as  amicus  curice,  in  No.  170:  ^ 

So  far  as  it  relates  to  the  liability  of  an  interstate 
employer  to  an  interstate  employe  for  injury  received 
through  the  negligence  of  another  interstate  employe, 
the  act  is  a  regulation  of  interstate  commerce,  and 
within  the  constitutional  power  of  Congress. 

In  the  Employers'  Liability  Cases,  207  U.  S.  463,  the 
enactment  there  considered  was  held  unconstitutional, 
for  the  reason  that  it  imposed  a  liability  to  an  intrastate 
employe  as  well  as  to  an  interstate  employe ;  while  what 
was  then  said  in  the  opinion  of  the  court  concerning  the 
authority  of  Congress  to  regulate  the  liability  to  an  in- 

1  The  brief  contained  the  following  statement: 

The  foregoing  brief  was  prepared  by  the  late  Solicitor  General 
(Lloyd  W.  Bowers  who  died  in  September,  1910)  with  his  accus- 
tomed care  and  ability.  In  order  that  it  may  properly  be  before 
the  court,  I  adopt  it  and  ask  its  consideration.  Geo.  W.  Wicker- 
sham,  Attorney  General.     December,  1910. 


CONSTITUTIONAL   DECISIONS  813 

United  States  Supreme  Court 

terstate  employe  was  not  logically  vital  to  the  decision, 
nevertheless  the  utterance  was  made  after  full  discussion 
of  the  very  question  at  the  bar,  after  solemn  consider- 
ation of  the  question  by  the  court,  and  in  a  deliberate 
purpose  of  preventing  misconception  by  Congress  of  the 
actual  and  limited  scope  of  the  exact  decision,  with  the 
result  that  Congress  should  not  mistakenly  beheve  it- 
self incapable  of  enacting  a  new  statute  affecting  in- 
terstate employes  alone. 

Whether  the  court's  declaration  was,  in  a  technical 
view,  dictum  or  decision,  the  declaration  certainly  was 
not  casual  or  unconsidered,  but  was  solemnly  made 
after  argument,  upon  consideration,  and  with  serious, 
just  and  beneficent  purpose,  and  see  dissenting  opinions 
of  Justices  Harlan,  McKenna,  Holmes  and  Moody. 

In  the  later  case  of  Adair  v.  United  States,  208  U.  S. 
161,  this  court  treated  the  power  of  Congress  as  settled. 

Congress  passed  the  act  of  1908  in  the  purpose  of  exer- 
cising a  power  which  this  court,  in  The  Employers^  Lia- 
bility Cases  and  in  the  Adair  Case,  solemnly  accorded 
to  Congress ;  and  the  lower  Federal  courts  have  regarded 
those  cases  as  settUng  the  matter.  Watson  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co.,  169  Fed.  Rep.  942;  Zikos  v.  Oregon 
R.  R.  &  Nav.  Co.,  179  Fed.  Rep.  893. 

Whatever  may  be  the  power  of  Congress  to  legislate 
about  or  for  agents  of  interstate  commerce,  when  such 
legislation  can  have  no  substantial  influence  upon  the 
act  which  is  interstate  commerce,  there  can  be  no  doubt 
of  the  congressional  authority  to  legislate  concerning  the 
agents  of  interstate  commerce  in  ways  that  do  substan- 
tially influence  the  act  of  interstate  commerce  about 
which  such  agents  are  engaged,  or  affect  the  reUability, 
security,  promptness  or  economy  of  the  Interstate  Com- 


814    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

merce  Act.  Interstate  commerce — if  not  always  at  any 
rate  when  the  commerce  is  transportation — is  an  act. 

If  Congress  regards  the  rule  of  employer's  responsi- 
bility established  by  this  new  statute  as  more  conducive 
than  the  old  rule  to  the  security  of  the  men  performing 
the  act  of  interstate  commerce,  whether  it  is  right  in 
its  conclusion  is  unimportant,  for,  if  that  view  can  be 
fairly  entertained,  it  is  not  for  the  courts  to  substi- 
tute their  opinion  concerning  the  better  policy.  Em- 
ployers' Liability  Cases,  supra;  St.  Louis  &  I.  M.  Ry. 
Co.  V.  Taylor,  210  U.  S.  281. 

Testing  the  rule  therefore  by  the  theory  on  which  it 
may  and  does  rest,  it  is  an  enactment  to  promote  not 
only  the  actual,  but  also  the  prompter,  cheaper,  safer 
and  more  efficient,  performance  of  the  act  of  interstate 
commerce  itself.  Illustrations  of  the  power  of  Congress 
to  regulate  the  act  of  interstate  commerce  by  legislation 
concerning  the  agents  who  do  it  or  the  instruments 
with  which  it  is  done  exist  both  in  the  Federal  statutes 
and  in  the  decisions  of  this  court. 

Congress  may  create  an  agent  for  doing  interstate 
commerce,  Pacific  Railroad  Removal  Cases,  115  U.  S.  1; 
California  v.  Pacific  Railroad,  127  U.  S.  1 ;  may  authorize 
the  erection  of  bridges  as  instrumentalities  of  interstate 
commerce,  The  Clinton  Bridge,  10  Wall.  454;  Luxton  v. 
North  River  Bridge  Co.,  153  U.  S.  525;  may  prescribe  the 
character  or  quaUfications  of  the  agents  of  interstate 
commerce — so  as  to  pilots.  See  Spi^aigue  v.  Thompson, 
118U.  S.  90,  95. 

Such  power  as  the  States  possess  to  license  and  to 
require  the  use  of  pilots  exists  only  because  Congress 
leaves  them  that  power  until  action  by  itself.  Cooley 
V.  Philadelphia  Wardens,  12  How.  299;  Huus  v.  N.  Y.  & 


CONSTITUTIONAL   DECISIONS  815 

United  States  Supreme  Court  • 

Porto  Rico  S.  S.  Co.,  182  U.  S.  392;  Olsen  v.  Smith,  195 
U.  S.  332,  344. 

Congress  may  prescribe  the  kind  and  condition  of  the 
material  instruments  with  which  commerce  shall  be 
done.  See  Safety  Apphance  Acts,  March  2,  1893,  27 
Stat.  531;  of  April  1,  1896,  29  Stat.  85;  March  2,  1903, 
32  Stat.  943 ;  and  numerous  acts  concerning  such  things 
as  steam  boilers,  Ufe  preservers,  Ufeboats  and  fire  ap- 
paratus on  vessels. 

The  validity  of  the  Safety  Appliance  Acts  seems 
never  to  have  been  questioned  either  by  the  bar  or  by 
this  court.  Johnson  v.  Southern  Pacific  Co.,  196  U.  S.  1; 
Schlemmer  v.  B.,  R.  &  P.  Ry.  Co.,  205  U.  S.  1 ;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Taylor,  210  U.  S.  281. 

The  system  of  licensing  steam  vessels  engaged  in  in- 
terstate commerce  was  upheld  in  The  Daniel  Ball,  10 
Wall.  557. 

The  supply  and  distribution  of  cars  as  instruments 
of  interstate  commerce  may  be  regulated  under  the 
authority  of  Congress.  Int.  Com.  Comm.  v.  III.  Cent. 
R.  R.  Co.,  215  U.  S.  452,  474.  For  other  instances  see 
Hours  of  Service  Act,  March  4,  1907,  34  Stat.  1415; 
Explosive  Act  of  July  3,  1866,  14  Stat.  81 ;  Rev.  Stat., 
§§  5353-5355,  Commodities  Clause;  United  States  v. 
Del.  &  Hudson  Co.,  213  U.  S.  366. 

Congress  may  legislate  in  reasonable  ways  to  preserve 
the  existence  and  conserve  the  efficiency  of  interstate 
employes  against  other  persons  who  are  in  the  same 
interstate  business.  The  Federal  power  is  to  protect 
and  advance  the  act  of  interstate  commerce,  and  so  to 
protect  and  further  the  work  of  any  particular  agent 
of  interstate  commerce,  against  all  the  world.  In  re 
Debs,  158  U.  S.  564.    Even  a  State  of  the  Union  cannot 


816    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

sanction  an  interruption.  Gibbons  v.  Ogden,  9  Wheat.  1 ; 
Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  518; 
Union  Bridge  Co.  v.  United  States,  204  U.  S.  364. 

Congress  would  probably  be  within  its  power  if  it  were 
legislating  solely  for  the  benefit  of  the  interstate  employ^ 
who  is  injured  in  interstate  work,  and  without  reference 
to  the  effect  of  its  legislation  upon  the  security  and  effi- 
ciency of  the  interstate  act  itself. 

In  Patterson  v.  Bark  Eudora,  190  U.  S.  169,  the  com- 
merce clause  was  held  to  empower  Congress  to  forbid 
the  advance  payments  of  wages  to  seamen  engaged  in 
interstate  or  foreign  commerce.  This  rule  was  enacted 
for  the  sole  benefit  of  the  seamen  as  the  agents  of  com- 
merce. The  case  did  not  rest  upon  the  admiralty  powers 
of  the  United  States. 

Congress  may  so  legislate  as  to  preserve  the  utihty  or 
the  beneficence  of  commerce  to  those  for  whom  it  is  done 
or  to  the  public  at  large,  and  may  prevent  the  conduct 
of  pernicious  commerce.  Lottery  Case,  188  U.  S.  321; 
United  States  v.  Del.  &  Hudson  Co.,  213  U.  S.  366. 

The  statute  is  a  regulation  of  interstate  commerce 
although  it  creates  a  liability  of  the  interstate  employer 
to  his  interstate  employ^  for  injury  of  the  latter  through 
the  negligence  of  an  intrastate  employ^.  Schlemmer  v. 
Buffalo,  Rochester  &c.  Ry.,  205  U.  S.  1,  11. 

Abolition  of  the  fellow-servant  rule  is  only  an  extinc- 
tion in  the  particular  case  of  the  doctrine  of  assumed 
risk. 

The  constitutional  function  of  Congress  is  to  save  and 
promote  interstate  commerce;  and  it  may  save  and  pro- 
mote it  through  suppression  of  any  kind  of  injurious  in- 
fluence. In  re  Debs,  158  U.  S.  564;  Loewe  v.  Lawlor,  208 
U.  S.  274. 


I 


CONSTITUTIONAL   DECISIONS  817 

United  States  Supreme  Court 

Congress  has  forbidden  local  bridges  which  interfere 
with  interstate  navigation;  local  carriage  of  explosives 
on  interstate  trains ;  state  or  municipal  interference  with 
the  business  of  interstate  soliciting  agents,  and  state  and 
municipal  taxation  of  interstate  business.  An  act  for 
punishment  of  outsiders  for  stealing  goods  of  a  wrecked 
vessel  was  upheld,  under  the  commerce  clause,  in  United 
States  V.  Coombs,  12  Pet.  72,  77. 

An  interstate  employer  can  be  required  to  be  careful 
about  the  apparatus  that  he  uses,  for  the  protection  of 
his  employe  who  is  engaged  in  interstate  work,  without 
reference  to  the  interstate  or  intrastate  character  of  the 
use  to  which  the  apparatus  is  being  put  at  the  particu- 
lar time. 

If  constitutional  difficulty  be  found  about  extending 
the  interstate  employer's  responsibility  to  an  interstate 
employe  for  negligence  of  an  intrastate  employe,  the 
statute  then  should  be  construed  as  limited  to  the  case  of 
an  interstate  employe's  negligence. 

The  proper  construction  of  the  statute,  unless  that 
construction  will  destroy  it,  includes  the  case  of  an  in- 
trastate employe's  negligence. 

The  congressional  selection  of  a  civil  liability  of  the 
interstate  employer  as  the  best  sanction  for  his  new  duty 
of  preventing  injury  of  an  interstate  employe  through 
negligence  of  his  coemployes  is  clearly  allowable;  and, 
as  Congress  had  authority  to  adopt  that  sanction,  it 
necessarily  prescribed  to  whom  the  new  civil  right 
should  belong.  See  Taft,  Cir.  J.,  in  Narramore  v. 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  96  Fed.  Rep.  298,  300. 

A  new  civil  duty  necessarily  involves  a  new  civil  right. 
It  was  allowable,  because  unavoidable,  for  Congress  to 
Bay  who  should  have  the  right  of  civil  recovery.  Other- 
52 


818    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

wise,  even  if  it  would  be  competent  for  the  States  to  des- 
ignate the  possessor  or  beneficiary  of  the  right,  the  state 
legislatures  might  make  no  such  designation.  In  any 
event,  the  effectiveness  of  the  congressional  rule  of  duty 
would  be  left  to  the  choice  of  the  States. 

The  statutory  provisions  that  the  injured  man  may 
sue  and  that,  if  he  dies,  his  personal  representative  may 
sue  for  the  benefit  of  designated  relatives,  are  requisite 
to  the  existence  of  any  effective  right,  and  therefore  of 
any  effective  duty. 

The  designation  of  the  beneficiaries  of  the  new  right, 
in  case  the  injured  employ^  dies,  does  not  interfere  with 
the  ordinary  control  of  the  States  over  post  mortem  suc- 
cession. State  laws  of  descent  have  nothing  to  do  with 
the  question  who  may  continue  settlement  and  finally 
take  title  under  the  homestead  law  of  the  United  States, 
after  death  of  the  original  entryman.  Bernier  v.  Bernier, 
147  U.  S.  242;  McCune  v.  Essig,  199  U.  S.  382. 

Congress  can  enact  that  the  responsibility  of  an  inter- 
state employer  to  an  interstate  employ^  for  negligence 
of  coemploy^s  or  negUgence  about  appliances  shall  not 
be  entirely  displaced  by  contributing  negligence  of  the 
interstate  employe. 

Nobody  has  a  vested  right  in  the  continuance  of  the 
rules  of  the  common  law.  Rights  already  created  under 
those  rules  and  property  already  derived  from  them 
have  sanctity;  but  the  common  law  may  be  changed  as 
to  future  transactions,  just  as  statutes  may  be.  Munn 
v./iZinois,  94  U.S.  113,  134. 

How  the  interstate  employe's  negligence  shall  be  al- 
lowed to  affect  the  interstate  employer's  liability  for 
his  own  negligence  or  for  negligence  with  which  he  is 
chargeable  is  purely  one  of  pohcy,  within  the  legis- 


CONSTITUTIONAL   DECISIONS  819 

United  States  Supreme  Court 

tive  discretion,  and  the  common-law  view  may  ra- 
tionally be  rejected.  The  alternative  conclusion  which 
Congress  has  reached  is  to  be  found  in  the  long  estab- 
lished rules  of  certain  jurisdictions  not  holding  to  the 
common  law  and  in  the  recent  trend  of  EngUsh  and 
American  legislation.  See,  for  instance,  the  admiralty 
practice,  which  divides  the  loss  between  persons  con- 
currently negUgent.  The  Sapphire,  18  Wall.  51,  56; 
The  Max  Morris,  137  U.  S.  1.  And  contribution  Ues 
between  joint  tort  feasors  in  admiralty.  Erie  R.  R, 
Co.  V.  Erie  Transp.  Co.,  204  U.  S.  220,  225,  227. 

The  rule  of  comparative  negUgence,  variant  in  its 
details  but  always  contradictory  of  the  common-law 
rule,  was  estabhshed  by  the  courts  in  Illinois,  Kansas 
and  Tennessee.  Galena  v.  Jacobs,  20  Illinois,  478,  496; 
Chicago  v.  Stearns,  105  Illinois,  554;  Union  Pacific  R. 
R.  Co.  V.  Rollins,  5  Kansas,  167,  180;  Kansas  &c.  R. 
R.  Co.  V.  Peavey,  29  Kansas,  169,  ISO;  Nashville  &c.  R. 
R.  Co.  V.  Smith,  6  Heisk.  174;  Nashville  &c.  R.  R.  Co.  v. 
Carroll,  6  Heisk.  347,  366. 

For  statutory  instances,  see  Georgia  Code,  §2972; 
Florida  Laws  of  1887,  c.  3744,  §  1 ;  Mississippi  Code  of 
1892,  §  3548;  Enghsh  Employers'  Liability  Acts,  Aug.  6, 
1897;  60  and  61  Vict.,  c.  37,  §  1 ;  Act  of  July  30, 1900,  63 
and  64  Vict.,  c.  22;  McNicholas  v.  Dawson,  68  L.  J. 
(Q.  B.)  470. 

It  seems  never  to  have  been  held  anywhere  that  the 
Federal  or  any  state  constitution  requires  that  contrib- 
utory negUgence  be  either  total  or  a  partial  defense. 

As  to  statutes  adopting  the  rule  of  comparative  neg- 
ligence and  aboUshing  contributory  neghgence,  see  Nor. 
Pac.  Ry.  Co.  v.  Castle,  172  Fed.  Rep.  841,  843;  AU- 
hama  G.  S.  Ry.  Co.  v.  Coggings,  88  Fed.  Rep.  455;  Chris- 


820    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

tian  V.  Macon  Ry.  &  Light  Co.,  120  Georgia,  314;  Rail- 
road Co.  V.  Foxworth,  41  Florida,  1,  63;  Phila.,  B.  &  W. 
R.  R.  Co.  V.  Tucker,  35  App.  D.  C.  123;  38  Washington 
Law  Reporter,  230;  Pulliam  v.  Illinois  Central  R.  R. 
Co.,  75  Mississippi,  627;  Schlemmer  v.  Buffalo  &c.  Ry. 
Co.,  205  U.  S.  1. 

Congress  likewise  can  modify,  as  it  did  in  §  4,  as  to 
interstate  employes  the  assumption  of  risk  rule  in 
cases  where  the  common  carrier  has  violated  any  statute 
enacted  for  the  safety  of  employes  and  so  contributed 
to  the  injury  or  death  of  such  employe. 

Recent  statutory  abrogation  of  the  doctrine  of  as- 
sumption of  risk  will  be  found  in  North  Carolina  Act 
of  February  23,  1897,  Private  Laws  of  1897,  c.  56;  Mas- 
sachusetts Laws  of  1895,  c.  362,  §  7 ;  New  York  Act 
of  April  15,  1902,  Laws  of  1902,  Vol.  2,  c.  600,  §  3, 
pp.  1748-50;  Enghsh  Employers'  Liabihty  Act  of  1880,  as 
interpreted  in  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685, 
and  Smith  v.  Baker,  App.  Cas.  1891,  325;  English  Em- 
ployers' Liability  Act  of  July  30,  1900,  63  and  64  Vict., 
c.  22;  Federal  Safety  Apphance  Act  of  March  2,  1893, 
as  amended  April  1,  1896,  §  8  (27  Stat.  531,  and  29 
Stat.  85). 

For  judicial  authorities  upholding  general  statutory 
changes  of  that  nature,  see  Coley  v.  Railroad  Co.,  128 
Nor.  Car.  534;  s.  c,  129  Nor.  Car.  407;  Missouri 
Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205;  Miss.  &  St. 
Louis  Ry.  Co.  v.  Herrick,  127  U.  S.  210;  Chicago,  K.  & 
Western  R.  R.  Co.  v.  Pontius,  157  U.  S.  209;  Tullis  v. 
Lake  Erie  &  West.  R.  R.  Co.,  175  U.  S.  348;  Minnesota 
Iron  Co.  V.  Kline,  199  U.  S.  593;  Narramore  v.  Cleveland 
&c.  R.  R.  Co.,  96  Fed.  Rep.  298,  302;  Kilpatrick  v. 
Grand  Trunk  Ry.  Co.,  74  Vermont,  288;  Schlemmer  v. 


CONSTITUTIONAL  DECISIONS  821 

United  States  Supreme  Court 

Buff.,  Roch.  &  Pitts.  Ry.  Co.,  205  U.  S.  1,  ll-U]  Johnson 
V.  Southern  Pacific  Co.,  196  U.  S.  1. 

Sections  3  and  4,  concerning  contributory  negligence 
and  assumption  of  risk,  are  each  clearly  separable  from 
the  rest  of  the  statute;  and  even  if  they  are  imconstitu- 
tional  that  would  not  affect  the  operation  of  the  rest  of 
the  act.    El  Paso  &c.  Ry.  Co.  v.  Gutierrez,  215  U.  S.  87. 

Congress  did  not  attempt,  either  in  the  act  of  1908  or 
that  of  April  5,  1910,  to  confer  a  new  jurisdiction  upon 
state  courts  over  actions  in  enforcement  of  the  new  Fed- 
eral right;  and,  even  if  the  act  of  April  5, 1910,  should  be 
construed  as  embracing  such  an  attempt,  its  invalidity 
in  that  respect  would  not  affect  the  substantive  rules  of 
law  established  by  the  act  of  1908.  Nor  can  Congress 
be  considered  to  have  made  the  operation  of  the  sub- 
stantive rules  of  law  established  by  the  act  of  1908 
dependent  upon  the  willingness  of  all  or  any  state  courts 
to  take  cognizance  of  actions  founded  upon  those  rules. 
Hoxie  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  73  Atl.  Rep.  754, 
762,  is  clearly  wrong. 

The  act  of  1908  did  not  try  to  give  a  new  jurisdiction 
of  its  own  creation  to  the  state  courts.  The  act  deals  en- 
tirely with  rights  and  duties — ^not  with  remedies.  It 
creates  rules  of  substantive  law. 

The  state  courts,  inasmuch  as  Congress  did  not  give 
exclusive  jurisdiction  to  the  Federal  courts,  could  and 
should  use  their  general  jurisdiction,  given  to  them  by 
their  state  legislatures,  in  enforcement  of  the  Federal 
right.  The  privilege  of  the  state  courts  so  to  use  their 
jurisdiction  is  undeniable,  when  neither  Congress  nor 
the  state  legislature  has  withdrawn  that  privilege  in  a 
particular  case.  The  general  grant  of  jurisdiction  by 
state  law  is  sufficient  to  cover  any  right,  whether  created 


822    bradbuhy's  workmen's  compensation  law 

United  States  Supreme  Court 

by  the  law  of  that  State  or  of  other  States  or  of  the 
United  States  or  of  foreign  countries.  Congress  has 
left  the  state  courts  free  to  use  that  general  jurisdiction, 
by  not  prohibiting  its  use;  and  the  terms  of  the  State's 
grant  of  jurisdiction  cover  the  case.  Claflin  v.  House- 
man, 93  U.  S.  130.     • 

It  is  the  duty,  as  well  as  the  right,  of  the  state  courts 
to  take  jurisdiction  of  actions  under  the  Federal  Em- 
ployers' Liability  Act.  Report  of  the  Senate  Committee 
on  the  Judiciary,  March  22,  1910,  61st  Congress,  2d 
Session, 

The  statute  makes  no  reference  to  remedies,  and  es- 
tablishes the  law  independently  of  remedies.  The  clause 
of  1910  about  concurrent  jurisdiction  of  the  state  courts 
was  obviously  intended  to  prevent  a  mistaken  and  im- 
portant reduction  of  remedies — not  to  make  new  con- 
ditions upon  the  operation  of  the  original  statute. 

Further,  the  attitude  of  the  state  courts  can  make  no 
real  difference  in  the  operation  of  the  statute.  In  the 
first  place,  any  claimant  of  the  new  Federal  right  can  go 
into  a  Federal  court  by  simply  laying  his  damages  at 
more  than  $2,000.  In  the  second  place,  as  already  sug- 
gested, this  court  can  doubtless  compel  the  state  courts 
to  exercise  in  aid  of  the  new  Federal  right  such  jurisdic- 
tion as  those  courts  have  under  state  laws. 

The  act  does  not  deprive  a  railroad  of  its  property 
without  due  process  of  law,  in  violation  of  the  Fifth 
Amendment. 

Assuming  that  the  due  process  requirement  of  the 
Fifth  Amendment  is  equivalent  to  the  equal  protection 
of  the  laws  required  by  the  Fourteenth  Amendment,  the 
authorities  show  that  this  court  has  already  repeatedly 
disposed  of  these  objections  to  the  act. 


CONSTITUTIONAL  DECISIONS  823 

United  States  Supreme  Court 

The  following  cases  sustain  state  statutes  abolishing 
the  fellow-servant  rule  upon  railroads  alone,  against  ex- 
press attack  under  the  Fourteenth  Amendment:  Mis- 
souri Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205;  Minn.  & 
St.  Louis  R.  R.  Co.  v.  Herrick,  127  U.  S.  210;  Chicago 
&c.  R.  R.  Co.  V.  Pontius,  157  U.  S.  209;  Tullis  v.  Lake 
Erie  &  Northern  R.  R.  Co.,  175  U.  S.  348;  St.  Louis 
Bridge  R.  R.  Co.  v.  Callahan,  194  U.  S.  628;  Minnesota 
Iron  Co.  V.  Kline,  199  U.  S.  593;  P.,  C,  C.  &  St.  L.  R.  R. 
Co.  V.  Lightheiser,  212  U.  S.  560;  Louisville  &  Nashville 
R.  R.  Co.  V.  Melton,  218  U.  S.  36. 

Pertinent  support  of  other  legislation  making  special 
rules  for  railroads  is  found  in  Martin  v.  Pittsburg  & 
Lake  Erie  R.  R.  Co.,  203  U.  S.  284;  St.  Louis,  L  M.  &  S. 
Ry.  Co.  V.  Paul,  173  U.  S.  404;  United  States  v.  Delaware 
cfe  Hudson  Co.,  213  U.  S.  366,  417. 

Extension  of  the  new  rules  to  interstate  employes 
generally  was  permissible.  Their  restriction  to  em- 
ployes injured  in  consequence  of  special  railroad  hazard 
was  not  required  by  the  Constitution. 

Of  the  cases  above  cited,  concerning  statutes  abolish- 
ing the  fellow-servant  rule  upon  railroads,  the  following 
related  to  injuries  which  did  not  result  from  any  peculiar 
hazard:  Chicago  &c.  R.  R.  Co.  v.  Pontius,  157  U.  S. 
209;  St.  Louis  &c.  Terminal  R.  R.  Co.  v.  Callahan,  194 
U.  S.  628  (see  the  full  facts  in  s.  c,  170  Missouri,  473); 
Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593;  Louisville 
&  Nashdlle  R.  R.  Co.  v.  Melton,  218  U.  S.  36. 

El  Paso  &  Northeastern  Ry.  Co.  v.  Gutierrez,  215  U.  S. 
87,  while  not  expUcitly  treating  it,  really  covers  the 
exact  point  as  presented  under  this  legislation. 

The  cases  at  bar  involve  no  question  under  §  5  con- 
cerning the  validity  of  a  contract  exempting  the  carrier 


824    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

from  responsibility  under  the  rules  of  the  statute.  That 
section  is  manifestly  separable  from  the  rest  of  the  act. 
Strong  principle  and  much  authority  support  its  va- 
lidity; but  its  palpable  separableness  makes  discussion 
of  the  section  now  unnecessary.  McNamara  v.  Wash- 
ington Terminal  Co.,  38  Wash.  Law  Rep.  343,  in  which 
§  5  of  the  present  act  was  construed  and  upheld.  The 
separableness  of  §  5  is  too  plain  for  discussion. 

Mr.  John  L.  Hall  for  plaintiff  in  error  in  No.  289  and 
defendant  in  error  in  No.  290 : 

The  act  is  not  in  itself  a  regulation  of  commerce.  Gib- 
bons V.  Ogden,  9  Wheat.  196. 

The  Constitution  which  enumerates  the  powers  of 
the  National  Government  is  in  itself  a  Umitation  upon 
the  power  of  Congress  to  legislate.  United  States  v. 
Knight,  15QV.S.  1,  11. 

The  Constitution  guarantees  the  existence  of  the 
powers  of  the  state  governments  no  less  than  it  guaran- 
tees the  powers  of  the  Federal  Government.  Cooley  on 
Const.  Lim.  592 ;  Ward  v.  Maryland,  12  Wall.  418.  This 
act  is  not  one  which  plainly,  logically,  and  directly 
tends  to  promote  commerce  between  the  States.  Hop- 
kins V.  United  States,  171  U.  S.  592. 

In  cases  in  which  this  court  has  described  the  power 
of  the  States  to  legislate  upon  interstate  commerce, 
the  legislation  which  has  been  under  consideration  has 
always  directly  and  logically  affected  the  intercourse 
between  the  States,  see  Hall  v.  DeCuir,  95  U.  S.  485; 
Bobbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489; 
Brown  v.  Maryland,  4  Wash.  C.  C.  378;  Gibbons  v. 
Ogden,  9  Wheat.  1;  Crandall  v.  Nevada,  6  Wall.  35; 
Wabash  R.  R.  v.  Illinois,  118  U.  S.  557;  Nashville  &c. 


CONSTITUTIONAL   DECISIONS  825 

United  States  Supreme  Court 

R.  R.  V.  Alabama,  128  U.  S.  96;  Osborne  v.  Florida,  164 
U.  S.  650;  Pullman  Co.  v.  Adams,  189  U.  S.  420;  Gladson 
V.  Minnesota,  166  U.  S.  427;  Illinois  Central  R.  R.  v. 
Illinois,  163  U.  S.  142. 

The  cases  of  Coe  v.  Errol,  116  U.  S.  517;  Cooper  Mfg. 
Co.  V.  Ferguson,  113  U.  S.  727;  N.  Y.,  N.  H.  &  H.  R.  R. 
V.  New  York,  165  U.  S.  628;  Louisville  &c.  Ry.  Co.  v. 
Mississippi,  133  U.  S.  587;  Hennington  v.  Georgia,  163 
U.  S.  299;  Telegraph  Co.  v.  James,  162  U.  S.  650;  Nash- 
ville &c.  Ry.  V.  Alabama,  128  U.  S.  96,  involve  the  con- 
sideration of  statutes  which  bear  directly  and  naturally 
upon  the  commerce  itself. 

Any  regulation  to  come  within  the  meaning  of  the 
interstate  commerce  clause  must  be  direct  and  logical 
and  not  indirect,  remote  and  merely  incidental.  Addys- 
ton  P.  &  S.  Co.  V.  United  States,  175  U.  S.  211;  Hooper 
V.  California,  155  U.  S.  648;  Munn  v.  Illinois,  94  U.  S. 
113;  L.  tfc  A^.  Ry.  v.  Kentucky,  161  U.  S.  677;  Lake  Shore 
Ry.  V.  Smith,  173  U.  S.  684. 

The  act  does  not  declare  that  it  regulates  interstate 
commerce.  It  prescribes  no  rule  by  which  commerce  is 
to  be  governed ;  it  determines  no  conditions  upon  which 
it  shall  be  conducted.  It  does  not  seek  to  secure  equality 
and  freedom  against  discrimination.  It  does  not  deter- 
mine when  it  shall  be  free  or  when  it  shall  be  subject 
to  any  duties  or  other  burdens.  See  Minority  Report 
on  the  redraft  of  this  bill  known  as  H.  R.  No.  2310  of 
the  60th  Congress,  1st  Session  and  Report  No.  1386, 
H.  R.,  60th  Congress,  1st  Session. 

Cases  arising  under  maritime  law  in  which  acts  of 
Congress  upon  the  relations  of  owners  of  ships  to  the 
owners  of  goods,  upon  the  relations  with  passengers  and 
employes,  have  been  sustained,  rest  not  on  the  com- 


'826    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 


merce  clause  but  on  the  admiralty  jurisdiction.  Craig 
V.  Insurance  Company,  141  U.  S.  638;  Butler  v.  Boston 
S.  S.  Co.,  130  U.  S.  548;  and  see  B.  &  0.  R.  R.  v.  Mary- 
land, 21  Wall.  456;  In  re  Garnett  et  al,  141  U.  S.  1;  The 
Daniel  Ball,  10  Wall.  557;  The  Roanoke,  189  U.  S.  185; 
The  Lottawanna,  21  Wall.  558. 

Acts  which  are  held  constitutional  when  applied  to 
maritime  regulation  are  not  necessarily  constitutional 
when  applied  to  commerce  by  land. 

The  Safety  Appliance  Acts  are  justified  because  it  was 
essential  that  States  should  not  legislate  as  to  the 
instrumentalities  which  should  be  used  by  railroads. 
Such  legislation  by  States  would  interfere  with  inter- 
state commerce  and  place  a  burden  upon  free  and 
rapid  transportation.  The  legislation  was  national  in 
its  character  and  required  uniformity  of  regulation. 
United  States  v.  Southern  Ry.  Co.,  164  Fed.  Rep. 
351. 

This  act  invades  the  sovereignty  of  the  States.  Trade 
Mark  Cases,  100  U.  S.  96;  Barbier  v.  Connolly,  113  U.  S. 
27;  Hooper  v.  California,  155  U.  S.  648. 

If  Congress  has  the  power  to  determine  the  liabiHty 
of  a  railroad  company  to  its  employes  simply  because 
both  are  engaged  in  interstate  commerce,  then  it  has 
the  same  right  to  regulate  the  liability  of  a  shipper  to 
its  employe  when  engaged  in  interstate  commerce.  In 
fact,  there  is  scarcely  any  relation  upon  which  it  cannot 
legislate.  The  States  would  be  shorn  of  their  power  to 
regulate  their  domestic  affairs.  Houston  v.  Moore,  5 
Wheat.  1,  48;  Keller  v.  United  States,  213  U.  S.  138; 
Leisy  v.  Hardin,  135  U.  S.  100;  Pa.  R.  R.  v.  Knight,  192 
U.  S.  21;  Chicago  &c.  R.  R.  v.  Solan,  169  U.  S.  133; 
United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1;  Northern 


CONSTITUTIONAL   DECISIONS  827 

United  States  Supreme  Court 

Securities  Co.  v.  United  States,  193  U.  S.  197;  L.  &  N. 
R.  R.  V.  Kentucky,  161  U.  S.  677. 

The  act  regulates  the  relation  of  master  and  servant 
as  to  things  which  are  not  exclusively  interstate  com- 
merce. 

It  substantially  reenacts  in  this  particular  the  words 
of  the  previous  Employers'  Liability  Act,  and  must  be 
presumed  to  have  been  drafted  with  knowledge  of  the 
judicial  construction  which  those  words  had  received. 
Employers'  Liability  Cases,  207  U.  S.  463. 

An  interstate  carrier  is  also  an  intrastate  carrier  and 
employes  upon  the  same  train  may  be  engaged  at  the 
same  time  in  interstate  and  intrastate  commerce;  the 
statute  therefore  confers  a  right  of  recovery  upon  em- 
ployes engaged  in  intrastate  commerce,  and  thus  touches 
the  relation  of  master  and  servant  as  to  matters  con- 
cerned with  intrastate  commerce. 

The  right  of  the  State  to  regulate  its  commerce  within 
its  own  borders  is  paramount  to  the  power  of  Congress 
to  regulate  such  commerce.  The  License  Cases,  5  How. 
504. 

The  act  touches  directly  and  seeks  to  regulate  the 
relation  of  master  and  servant  as  to  intrastate  business. 
Hoxie  V.  N.  Y.,  N.  H.  &  H.  R.  R,  Co.,  82  Connecticut, 
352,  368. 

When  Congress  seeks  to  impose  some  new  rule  of 
liability  upon  employers  engaged  in  interstate  commerce 
it  is  imposing  a  rule  of  liability  to  the  same  extent  in 
effect  upon  those  who  are  engaged  in  intrastate  com- 
merce. It  denies  the  authority  of  the  State  to  regulate 
its  domestic  commerce,  which  is  in  no  respect  inferior 
to  the  power  of  Congress  to  regulate  interstate  com- 
merce.   Zikos  V.  Oregon  R.  &  N.  Co.,  179  Fed.  Rep.  893. 


828    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

The  act  is  unconstitutional  in  that  it  violates  the 
Fifth  Amendment  to  the  Constitution,  which  is  a  limi- 
tation upon  the  power  of  Congress,  while  the  Fourteenth 
is  a  limitation  upon  the  power  of  the  States.  The 
purpose  of  both  amendments  is  to  secure  the  existence 
of  fundamental  justice  and  to  prevent  capricious  and 
arbitrary  legislation  whereby  unfair  burdens  are  placed 
upon  one  class  of  persons. 

The  construction  placed  upon  one  Amendment  is 
applicable  to  the  other.  San  Mateo  County  v.  So.  Pac. 
Ry.,  13  Fed.  Rep.  151;  Dent  v.  West  Virginia,  129  U.  S. 
114;  Sinking  Fund  Cases,  99  U.  S.  718;  French  v.  Barber 
Asphalt  Co.,  181  U.  S.  324;  Munn  v.  Illinois,  94  U.  S. 
123;  Giozza  v.  Tiernan,  148  U.  S.  657;  Hurtado  v.  Cal- 
ifornia, 110  U.  S.  516;  Gulf,  Colorado  &c.  R.  R.  v.  Ellis, 
165  U.  S.  150. 

The  act  violates  the  Fifth  Amendment  because:  It 
imposes  upon  common  carriers  by  rail  engaged  in  inter- 
state commerce  liabilities  which  are  not  imposed  upon 
others  engaged  in  interstate  commerce;  it  deprives 
common  carriers  by  rail  engaged  in  interstate  commerce 
of  defenses  which  are  available  to  others  engaged  in 
interstate  commerce;  it  limits  the  powers  of  contract 
of  common  carriers  by  rail  engaged  in  interstate  com- 
merce in  their  relations  with  their  employes,  and  does 
not  limit  such  powers  of  others  engaged  in  interstate 
commerce. 

Congress  sought  no  reasonable  or  proper  basis  for 
the  classification,  although  its  attention  was  directed 
to  the  necessity  for  such  a  distinction.  See  Cong.  Rec. 
1908,  4433.  Congress  is  not  seeking  to  regulate  inter- 
state commerce  by  regulating  the  hazardous  business 
of  operating  a  railroad,  but  is  attempting  to  regulate 


CONSTITUTIONAL   DECISIONS  829 

United  States  Supreme  Court 

carriers  by  rail  in  all  of  their  departments,  and  liability 
is  imposed  in  favor  of  all  employes  while  engaged  in 
interstate  commerce. 

The  Fifth  Amendment  insures  equal  protection  of 
the  laws.  It  prevents  distinctions  and  classifications, 
unless  the  classifications  are  made  upon  some  basis 
which  is  natural  and  not  arbitrary.  Gulf,  Colorado  &c. 
R.  R.  V.  Ellis,  165  U.  S.  150;  Missouri  Pacific  Ry.  v. 
Mackey,  127  U.  S.  205;  Minneapolis  &c.  Ry.  v.  Herrick, 
127  U.  S.  210;  Chicago  &c,  R.  R.  v.  Pontius,  157  U.  S. 
209. 

As  a  basis  for  classification  by  special  legislation  of 
Congress,  this  court  has  no  right  to  assume  that  the 
majority  of  the  members  of  the  class  who  are  favored 
by  this  legislation  are  exposing  their  lives  to  extraordi- 
nary risks  when  the  facts  are  to  the  contrary.  This 
court  will  determine  for  itself  the  propriety  of  the  clas- 
sification.   Lochner  v.  New  York,  198  U.  S.  45. 

It  is  for  this  court  to  assume  that  those  actually  en- 
gaged in  the  movement  and  operation  of  trains  form  a 
greater  part  or  even  one-half  of  the  total  number  of  em- 
ployes engaged  in  the  business  of  interstate  commerce 
of  any  carrier  by  rail  so  engaged. 

A  classification  is  not  justified  by  general  considera- 
tions when  the  reason  for  the  classification  applies  to 
less  than  one-fifth  of  the  class  selected.  Accident 
Insurance  Manual,  365-371;  21st  Report  Interstate 
Com.  Comm.  153;  and  see  Louisville  &  Nashville  Ry. 
V.  Melton,  218  U.  S.  36;  Tullis  v.  Lake  Erie  &  W.  R.  R., 
175  U.  S.  348;  Magoun  v.  Illinois  Trust  &  Savings 
Bank,  170  U.  S.  294;  Orient  Ins.  Co.  v.  Daggs,  172  U.  S. 
557;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593;  Martin 
V.  Pittsburg  &c.  R.  R.,  203  U.  S.  284;  Southwestern  Oil 


830    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Co.  V.  Texas,  217  U.  S.  114;  Johnson  v.  Ry.  Co.,  43 
Minnesota,  222,  as  to  classifications,  holding  that  one 
rule  of  liability  cannot  be  established  for  railway  com- 
panies merely  as  such  and  another  rule  for  other  em- 
ployers under  like  circumstances,  and  that  special 
legislation  to  be  not  class  legislation  must  not  only 
treat  alike  under  the  same  conditions  all  who  are  brought 
within  its  influence,  but  in  its  classification  it  must 
bring  within  its  influence  all  who  are  under  the  same 
conditions. 

The  act  has  not  included  within  its  provisions  the 
interstate  employes  of  all  other  persons  engaged  in 
interstate  commerce. 

It  includes  within  its  terms  only  one  class  of  employers 
who  are  engaged  in  interstate  commerce;  namely,  rail- 
roads. It  discriminates  against  railroad  companies  en- 
gaged in  interstate  commerce  who  operate  and  maintain 
boats,  wharves,  docks  and  incidental  equipment,  and 
other  employers  engaged  in  interstate  commerce  operat- 
ing and  maintaining  boats,  wharves,  and  incidental 
equipment  under  precisely  the  same  conditions. 

The  provisions  of  §  5  violate  the  Fifth  Amendment 
in  that  they  interfere  with  freedom  of  contract.  Adair 
V.  United  States,  supra. 

The  right  of  contract  is  as  well  recognized  as  the  right 
to  property.  Allgeyer  v.  Louisiana,  165  U.  S.  578; 
Railroad  Co.  v.  Richmond,  19  Wall.  584;  Hoxie  v.  N.  Y., 
N.  H.  &  H.  R.  R.  Co.,  82  Connecticut,  352,  369. 

If  the  act  is  constitutional,  plaintifT  in  this  case  can- 
not recover  as  the  employe  must  be  engaged  in  inter- 
state commerce  at  the  time  of  his  injury  in  order  to 
maintain  his  action  under  the  statute,  and  the  burden 
is  necessarily  upon  the  plaintiff  to  show  that  at  the  time 


CONSTITUTIONAL   DECISIONS  831 

United  States  Supreme  Court 

of  the  injury  he  was  not  engaged  in  intrastate  com- 
merce. 

The  work  performed  by  some  employes  may  be  prop- 
erly described  as  dangerous,  while  the  work  performed 
by  other  employes  is  subject  to  no  more  risks  than  the 
ordinary  occupations  of  life.  There  are  employes  en- 
gaged in  the  direct  movement  and  operation  of  trains; 
employes  engaged  in  the  repair  and  maintenance  of 
tracks;  those  engaged  in  the  construction  and  repair 
of  locomotives  and  cars;  those  whose  duties  are  purely 
commercial  and  clerical.  See  on  this  point  Foley  v. 
Railroad,  64  Iowa,  644;  Stroble  v.  Railroad,  70  Iowa, 
555;  Malone  v.  Railroad,  65  Iowa,  417;  Johnson  v.  Rail- 
road, 43  Minnesota,  222;  Jemming  v.  Railroad,  96 
Minnesota,  302;  Missouri,  K.  &  T,  R.  R.  v.  Medaris, 
60  Kansas,  151;  Indianapolis  &  G.  R.  R.  v.  Foreman, 
162  Indiana,  85;  Taylor  v.  Southern  Railway,  178  Fed. 
Rep.  380;  St.  Louis  &  St.  F.  R.  R.  v.  Delk,  158  Fed. 
Rep.  931. 

The  car  involved  in  this  case  bore  the  same  relation 
to  interstate  commerce  that  it  would  have  borne  had 
it  been  in  the  repair  shop  awaiting  repairs,  and  under 
those  circumstances  the  men  engaged  in  repairing  the 
car  would  not  have  been  engaged  in  interstate  commerce 
or  any  other  commerce. 

The  carrier  is  not  liable  for  the  negligence  of  an 
intrastate  employe.  Zikos  v.  Oregon  Railroad  &  Navi- 
gation Co.,  179  Fed.  Rep.  893. 

The  act  seeks  to  regulate  the  relations  of  the  employer 
to  the  members  of  the  family  of  a  deceased  employ^, 
which  Congress  cannot  do  under  its  power  to  regulate 
commerce. 

In  tliis  respect  the  act  invades  the  settled  limits  of  the 


832    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

sovereignty  of  the  States,  Williams  v.  Fears,  179  U.  S. 
270,  and  also  seeks  to  determine  the  administration 
of  the  estates  of  deceased  persons.  Congress  has  not 
the  power  to  create  the  duties  of  an  administrator.  The 
power  of  the  administrator  is  limited  by  the  authority 
granted  him  by  the  State  which  created  his  office. 

A  strict  construction  of  this  statute,  which  alters  the 
coimnon  law,  is  required,  and  no  sufficient  provision 
has  been  made  for  the  assessment  of  damages.  Sewall 
V.  Jones,  26  Massachusetts,  9  Pick.  412;  United  States 
V.  Fisher,  2  Cranch,  358;  Shaw  v.  Railroad  Co.,  101  U.  S. 
557. 

Mr.  Endicott  P.  Saltonstall,  with  whom  Mr.  George  D. 
Burr  age  was  on  the  brief,  for  plaintiff  in  error  in  No.  290, 
and  defendant  in  error  in  No.  289: 

The  Employers'  Liability  Act  of  1906  was  declared 
unconstitutional  because  it  was  addressed  to  all  common 
carriers  engaged  in  interstate  commerce,  and  imposed 
a  liability  upon  them  in  favor  of  any  of  their  employes, 
without  quaUfication  or  restriction  as  to  the  business  in 
which  the  carriers  or  their  employes  might  be  engaged 
at  the  time  of  the  injury.  Employers'  Liability  Cases, 
207  U.  S.  498. 

Immediately  thereafter  Congress  enacted  the  act  of 
April  22,  1908,  and  met  the  objections  to  the  former  act. 
See  report  of  House  Committee  on  the  Judiciary  on 
House  Bill  20310;  Thornton's  Employers'  Liability, 
247-260.  The  act  has  been  passed  on  and  upheld  in 
Watson  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  169  Fed.  Rep. 
942;  Colasurdo  v.  Central  R.  R.  of  N.  J.,  180  Fed.  Rep. 
832;  Zikos  v.  Oregon  R.  &  N.  Co.,  179  Fed.  Rep.  893; 
Fulgham  v.  Midland  Valley  R.  Co.,  167  Fed.  Rep.  660; 


CONSTITUTIONAL   DECISIONS  833 

United  States  Supreme  Court 

Winfree  v.  Northern  Pac.  Ry.  Co.,  173  Fed.  Rep.  65; 
Dewberry  v.  Southern  Ry.  Co.,  175  Fed.  Rep.  307 ;  Bottoms 
V.  St.  Louis  &  S.  F.  R.  Co.,  179  Fed.  Rep.  318,  and  held 
unconstitutional  only  in  Hoxie  v.  N.  Y.,  N.  H.  &  H.  R. 
R.  Co.,  82  Connecticut,  354,  and  Mondou  v.  Same,  82 
Connecticut,  373. 

Congress  has  power  to  regulate  the  relations  of  master 
and  servant  as  between  an  interstate  carrier  and  an 
interstate  employ^.  State  v.  Chicago,  M.  &  St.  Paul  R. 
Co.,  136  Wisconsin,  407,  at  410. 

Congress  has  power,  in  regulating  the  relations  of 
master  and  servant,  as  aforesaid,  to  make  an  interstate 
carrier  Uable  to  an  interstate  employe  for  the  negligence 
of  an  intrastate  employ^.  Watson  v.  St.  Louis  &c.  Ry, 
Co.,  supra;  United  States  v.  Col.  &  N.  W.  R.  R.  Co.y 
157  Fed.  Rep.  321;  The  Daniel  Ball,  10  Wall.  557,  566; 
In  re  Debs,  158  U.  S.  564,  599;  United  States  v.  Burling- 
ton &c.  Ferry  Co.,  21  Fed.  Rep.  331,  340;  The  Hazel 
Kirke,  25  Fed.  Rep.  601,  607. 

If  the  act  is  constitutional,  but  appUes  only  where 
the  negUgent  fellow  servant  is  engaged  in  interstate 
commerce,  the  road  is  liable,  as  there  was  evidence  that 
the  negligence  which  caused  the  accident  was  that  of 
interstate  employes. 

The  provisions  of  the  act  in  this  respect  are  separable, 
and  liability  may  be  upheld  where  the  injury  is  caused 
by  an  interstate  employe,  although  denied  where  caused 
by  an  intrastate  employ^.  Zikos  v.  Oregon  R.  &,  N.  Co., 
supra. 

The  act  does  not  violate  either  the  Fifth  or  the  Four- 
teenth Amendment.  Missouri  Pacific  Ry.  Co.  v.  Mackeys, 
127  U.  S.  205;  Minneapolis  &c.  Ry.  Co,  v.  Herrick,  127 
U.  S.  210;  Chicago  dec.  R.  R.v.  Pontius,  157  U.  S.  209; 
53 


834    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Louisville  &  Nashville  R.  R.  Co.  v.  Melton,  218  U.  S.  36; 
Tullis  V.  Lake  Erie  &  W.  R.  R.  Co.,  175  U.  S.  348; 
Pittsburg  &c.  Ry.  Co.  v.  Ross,  212  U.  S.  560. 

Congress  has  power  to  provide  a  remedy  to  an  injured 
employe  of  an  interstate  carrier  as  provided  in  §  3  of  the 
act.  The  Max  Morris,  137  U.  S.  1, 14;  Johnson  v.  South- 
ern Pacific  Co.,  196  U.  S.  1;  Schlemmer  v.  Buffalo  &c. 
El/.  Co.,  205  U.S.  1. 

The  common-law  rule  that  contributory  negligence 
is  a  bar  to  recovery  may  be  altered  or  abolished  by  the 
legislature  whenever,  in  its  discretion,  it  sees  fit  to  do  so. 
Munn  V.  Illinois,  94  U.  S.  113,  134;  Hurtado  v.  People 
of  California,  110  U.  S.  516;  see  also  Wilmington  Mining 
Co.  V.  Fulton,  205  U.  S.  60,  74;  Bertholfv.  O'Reilly,  74  N. 
Y.  509,  524. 

A  legislature  may  by  statute  extend  the  common-law 
liability  of  a  railroad,  Chicago  &c.  Ry.  Co.  v.  Zernecke, 
183  U.  S.  582;  St.  Louis  &c.  Ry.  Co.  v.  Taylor,  210  U.  S. 
281 ;  or  limit  it,  Martin  v.  Pittsburg  &c.  R.  R.,  203  U.  S. 
284. 

The  act  is  not  invalid  as  violating  the  constitution  and 
statutes  of  Connecticut,  because  it  has  been  held  un- 
constitutional in  that  State.  Nashville  &c.  Ry.  Co.  v. 
Alabama,  128  U.  S.  96,  99. 

It  is  not  necessary  that  an  act  of  this  nature  should 
make  any  provision  for  the  assessment  of  damages.  If 
it  makes  none,  the  jury  will  be  instructed  as  to  the  man- 
ner of  assessing  damages,  and  these  instructions  will  be 
based  upon  the  principles  of  the  common  law  governing 
actions  of  tort  for  personal  injury. 

The  Safety  Appliance  Act  is  a  penal  statute,  and  there 
are  no  words  specifically  giving  an  injured  employe  a 
right  of  action  for  damages,  much  less  providing  how 


CONSTITUTIONAL   DECISIONS  835 

United  States  Supreme  Court 

those  damages  shall  be  assessed.  Johnson  v.  Southern 
Pac.  Co.,  supra;  Schlemmer  v.  Buffalo  &c.  Ry.  Co.,  supra. 

Congress  can  create  such  a  right  of  action  in  favor  of 
personal  representatives  of  an  inhabitant  of  a  State. 

Congress  may,  within  constitutional  limits,  alter  or 
modify  the  common  law.  A  state  statute  as  to  distri- 
bution of  estates  can  stand  on  no  higher  ground.  Sher- 
lock V.  Ailing,  93  U.  S.  99,  104. 

Congress  has  power  to  abolish  the  doctrine  of  as- 
sumption of  risk,  as  provided  in  §  4  of  the  act.  Johnson 
V.  Southern  Pac.  Co.;  Schlemmer  v.  Buffalo  &c.  R.  Co., 
supra. 

Congress  has  power  to  declare  void  a  contract  which 
enables  a  common  carrier  to  exempt  itself  from  Uability 
under  the  act,  as  provided  in  §  5. 

The  company  and  the  deceased  were  engaged  in 
interstate  commerce  at  the  time  of  the  accident. 

The  car  which  was  backed  or  ''kicked"  down  upon 
the  car  under  which  Walsh  was  working  was  a  car 
belonging  to  the  company,  coupled  to  an  Erie  flat  car. 

The  single  fact  that  the  car  which  deceased  undertook 
to  repair  contained  perishable  freight  brought  from  out- 
side the  State  where  the  accident  happened  is  sufficient 
to  show  that  the  company  was  engaged  in  interstate 
commerce  at  the  time.  The  Daniel  Ball,  supra;  Wabash 
&c.  Ry.  Co.  V.  Illinois,  118  U.  S.  557;  Norfolk  &c.  Ry.  Co. 
V.  Pennsylvania,  136  U.  S.  114;  United  States  v.  Col.  & 
Northwestern  Ry.  Co.,  supra;  and  see  also  United  States 
V.  Chicago  &c.  Ry.  Co.,  149  Fed.  Rep.  486,  490;  United 
States  V.  St.  Louis  &c.  R.  Co.,  154  Fed.  Rep.  516;  United 
States  V.  Illinois  Cent.  R.  R.,  156  Fed.  Rep.  182,  193; 
United  States  v.  Wheeling  &c.  R.  R.  Co.,  167  Fed.  Rep. 
198;  Wabash  R.  Co,  v.  United  States,  168  Fed.  Rep.  1; 


836    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Belt  Ry.  Co.  v.  United  States,  168  Fed.  Rep.  542;  Chicago 
June.  Ry.  Co.  v.  King,  169  Fed.  Rep.  372;  United  States 
V.  Southern  Ry.  Co.,  170  Fed.  Rep.  1014;  Johnson  v. 
Great  Northern  Ry.  Co.,  178  Fed.  Rep.  643,  646;  Felt 
V.  Denver  &c.  R.  Co.,  110  Pac.  Rep.  215. 

Mr.  Justice  Van  Devanter,  after  stating  the  cases 
as  above,  delivered  the  opinion  of  the  court. 

The  principal  questions  presented  in  these  cases  as 
discussed  at  the  bar  and  in  the  briefs  are:  1.  May  Con- 
gress, in  the  exertion  of  its  power  over  interstate  com- 
merce, regulate  the  relations  of  common  carriers  by 
railroad  and  their  employes  while  both  are  engaged  in 
such  commerce?  2.  Has  Congress  exceeded  its  power  in 
that  regard  by  prescribing  the  regulations  which  are 
embodied  in  the  act  in  question?  3.  Do  those  regula- 
tions supersede  the  laws  of  the  States  in  so  far  as  the 
latter  cover  the  same  field?  4.  May  rights  arising  under 
those  regulations  be  enforced,  as  of  right,  in  the  courts 
of  the  States  when  their  jurisdiction,  as  fixed  by  local 
laws,  is  adequate  to  the  occasion? 

The  clauses  in  the  Constitution  (Article  I,  §  8,  clauses 
3  and  18)  which  confer  upon  Congress  the  power  ''to 
regulate  commerce  *  *  *  among  the  several  States " 
and  "to  make  all  laws  which  shall  be  necessary  and 
proper"  for  the  purpose  have  been  considered  by  this 
court  so  often  and  in  such  varied  connections  that  some 
propositions  bearing  upon  the  extent  and  nature  of  this 
power  have  come  to  be  so  firmly  settled  as  no  longer 
to  be  open  to  dispute,  among  them  being  these: 

1.  The  term  "commerce"  comprehends  more  than 
the  mere  exchange  of  goods.    It  embraces  commercial 


CONSTITUTIONAL   DECISIONS  837 

United  States  Supreme  Court 

intercourse  in  all  its  branches,  including  transportation 
of  passengers  and  property  by  common  carriers,  whether 
carried  on  by  water  or  by  land. 

2.  The  phrase  ''among  the  several  States"  marks 
the  distinction,  for  the  purpose  of  governmental  regula- 
tion, between  commerce  which  concerns  two  or  more 
States  and  commerce  which  is  confined  to  a  single  State 
and  does  not  affect  other  States,  the  power  to  regulate 
the  former  being  conferred  upon  Congress  and  the  regu- 
lation of  the  latter  remaining  with  the  States  severally. 

3.  ''To  regulate,"  in  the  sense  intended,  is  to  foster, 
protect,  control  and  restrain,  with  appropriate  regard 
for  the  welfare  of  those  who  are  immediately  concerned 
and  of  the  public  at  large. 

4.  This  power  over  commerce  among  the  States,  so 
conferred  upon  Congress,  is  complete  in  itself,  extends 
incidentally  to  every  instrument  and  agent  by  which 
such  commerce  is  carried  on,  may  be  exerted  to  its 
utmost  extent  over  every  part  of  such  commerce,  and 
is  subject  to  iio  limitations  save  such  as  are  prescribed 
in  the  Constitution.  But,  of  course,  it  does  not  extend 
to  any  matter  or  thing  which  does  not  have  a  real  or 
substantial  relation  to  some  part  of  such  commerce. 

5.  Among  the  instruments  and  agents  to  which  the 
power  extends  are  the  railroads  over  which  transporta- 
tion from  one  State  to  another  is  conducted,  the  engines 
and  cars  by  which  such  transportation  is  effected,  and 
all  who  are  in  anywise  engaged  in  such  transportation, 
whether  as  common  carriers  or  as  their  employes. 

6.  The  duties  of  common  carriers  in  respect  of  the 
safety  of  their  employes,  while  both  are  engaged  in 
commerce  among  the  States,  and  the  liabiUty  of  the 
former  for  injuries  sustained  by  the  latter,  while  both 


838    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

are  so  engaged,  have  a  real  or  substantial  relation  to 
such  commerce,  and  therefore  are  within  the  range  of 
this  power.  Cooley  v.  Board  of  Wardens,  12  How,  299, 
315-317;  The  Lottawanna,  21  Wall.  558,  577;  Sherlock  v. 
Ailing,  93  U.  S.  99,  103-105;  Smith  v.  Alabama,  124 
U.  S.  465,  479;  Nashville  &c.  Ry.  Co.  v.  Alabama,  128 
U.  S.  96,  99;  Peirce  v.  Van  Dusen,  78  Fed.  Rep.  693, 
698-700;  Baltimore  &  Ohio  R.  R.  Co.  v.  Baugh,  149  U.  S. 
368,  378;  Patterson  v.  Bark  Eudora,  190  U.  S.  169,  176; 
Johnson  v.  Southern  Pacific  Co.,  196  U.  S.  1;  Schlemmer 
V.  Buffalo  &c.  Ry.  Co.,  205  U.  S.  1 ;  Employers'  Liability 
Cases,  207  U.  S.  463,  495;  Adair  v.  United  States,  208 
U.  S.  161,  176-178;  Baltimore  &  Ohio  R.  R.  Co.  v.  Inter- 
state Commerce  Commission,  221  U.  S.  612,  618;  Southern 
Railway  Co.  v.  United  States,  222  U.  S.  20. 

As  is  well  said  in  the  brief  prepared  by  the  late  Solici- 
tor General:  '^ Interstate  commerce — if  not  always,  at 
any  rate  when  the  commerce  is  transportation — is  an 
act.  Congress,  of  course,  can  do  anything  which,  in  the 
exercise  by  itself  of  a  fair  discretion,  may  be  deemed 
appropriate  to  save  the  act  of  interstate  commerce  from 
prevention  or  interruption,  or  to  make  that  act  more 
secure,  more  reliable  or  more  efficient.  The  act  of  inter- 
state commerce  is  done  by  the  labor  of  men  and  with 
the  help  of  things;  and  these  men  and  things  are  the 
agents  and  instruments  of  the  commerce.  If  the  agents 
or  instruments  are  destroyed  while  they  are  doing  the 
act,  commerce  is  stopped;  if  the  agents  or  instruments 
are  interrupted,  commerce  is  interrupted;  if  the  agents 
or  instruments  are  not  of  the  right  kind  or  quality, 
commerce  in  consequence  becomes  slow  or  costly  or 
unsafe  or  otherwise  inefficient;  and  if  the  conditions 
under  which  the  agents  or  instruments  do  the  work  of 


CONSTITUTIONAL   DECISIONS  839 

United  States  Supreme  Court 

commerce  are  wrong  or  disadvantageous,  those  bad 
conditions  may  and  often  will  prevent  or  interrupt  the 
act  of  commerce  or  make  it  less  expeditious,  less  reliable, 
less  economical  and  less  secure.  Therefore,  Congress 
may  legislate  about  the  agents  and  instruments  of 
interstate  commerce,  and  about  the  conditions  under 
which  those  agents  and  instruments  perform  the  work 
of  interstate  commerce,  whenever  such  legislation  bears, 
or  in  the  exercise  of  a  fair  legislative  discretion  can  be 
deemed  to  bear,  upon  the  reliability  or  promptness  or 
economy  or  security  or  utility  of  the  interstate  commerce 
act." 

In  view  of  these  settled  propositions,  it  does  not 
admit  of  doubt  that  the  answer  to  the  first  of  the  ques- 
tions before  stated  must  be  that  Congress,  in  the  exer- 
tion of  its  power  over  interstate  commerce,  may  regulate 
the  relations  of  common  carriers  by  railroads  and  their 
employes,  while  both  are  engaged  in  such  commerce, 
subject  always  to  the  hmitations  prescribed  in  the  Con- 
stitution, and  to  the  qualification  that  the  particulars 
in  which  those  relations  are  regulated  must  have  a  real 
or  substantial  connection  with  the  interstate  commerce 
in  which  the  carriers  and  their  employes  are  engaged. 

We  come,  then,  to  inquire  whether  Congress  has  ex- 
ceeded its  power  in  that  regard  by  prescribing  the  regu- 
lations embodied  in  the  present  act.  It  is  objected  that 
it  has  (1)  because  the  abrogation  of  the  fellow-servant 
rule,  the  extension  of  the  carrier's  liability  to  cases  of 
death,  and  the  restriction  of  the  defenses  of  contributory 
negligence  and  assumption  of  risk  have  no  tendency  to 
promote  the  safety  of  the  employes  or  to  advance  the 
commerce  in  which  they  are  engaged;  (2)  because  the 
liability  imposed  for  injuries  sustained  by  one  employ 6 


840    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

through  the  negUgence  of  another,  although  confined 
to  instances  where  the  injured  employe  is  engaged  in 
interstate  commerce,  is  not  confined  to  instances  where 
both  employes  are  so  engaged;  and  (3)  because  the  act 
offends  against  the  Fifth  Amendment  to  the  Constitu- 
tion (a)  by  unwarrantably  interfering  with  the  liberty 
of  contract  and  (b)  by  arbitrarily  placing  all  employers 
engaged  in  interstate  commerce  by  railroad  in  a  dis- 
favored class  and  all  their  employes  engaged  in  such 
commerce  in  a  favored  class. 

Briefly  stated,  the  departures  from  the  common  law 
made  by  the  portions  of  the  act  against  which  the  first 
objection  is  leveled  are  these :  (a)  The  rule  that  the  negli- 
gence of  one  employ^  resulting  in  injury  to  another  was 
not  to  be  attributed  to  their  common  employer,  is  dis- 
placed by  a  rule  imposing  upon  the  employer  responsi- 
bility for  such  an  injury,  as  was  done  at  common  law 
when  the  injured  person  was  not  an  employ^;  (b)  the 
rule  exonerating  an  employer  from  liability  for  injury 
sustained  by  an  employe  through  the  concurring  negU- 
gence of  the  employer  and  the  employ^  is  abrogated  in 
all  instances  where  the  employer's  violation  of  a  statute 
enacted  for  the  safety  of  his  employes  contributes  to 
the  injury,  and  in  other  instances  is  displaced  by  the 
rule  of  comparative  negligence,  whereby  the  exonera- 
tion is  only  from  a  proportional  part  of  the  damages 
corresponding  to  the  amount  of  negligence  attributable 
to  the  employ^;  (c)  the  rule  that  an  employ^  was  deemed 
to  assume  the  risk  of  injury,  even  if  due  to  the  employer's 
negligence,  where  the  employe  voluntarily  entered  or 
remained  in  the  service  with  an  actual  or  presumed 
knowledge  of  the  conditions  out  of  which  the  risk  arose, 
is  abrogated  in  all  instances  where  the  employer's  viola- 


CONSTITUTIONAL   DECISIONS  841 

United  States  Supreme  Court 

tion  of  a  statute  enacted  for  the  safety  of  his  employes 
contributed  to  the  injury;  and  (d)  the  rule  denying  a 
right  of  action  for  the  death  of  one  person  caused  by  the 
wrongful  act  or  neglect  of  another  is  displaced  by  a  rule 
vesting  such  a  right  of  action  in  the  personal  represent- 
atives of  the  deceased  for  the  benefit  of  designated 
relatives. 

Of  the  objection  to  these  changes  it  is  enough  to 
observe : 

First.  "A  person  has  no  property,  no  vested  interest, 
in  any  rule  of  the  conmion  law.  That  is  only  one  of 
the  forms  of  municipal  law,  and  is  no  more  sacred  than 
any  other.  Rights  of  property  which  have  been  created 
by  the  common  law  cannot  be  taken  away  without  due 
process ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will  *  *  *  of  the  legislature,  unless 
prevented  by  constitutional  limitations.  Indeed,  the 
great  office  of  statutes  is  to  remedy  defects  in  the  com- 
mon law  as  they  are  developed,  and  to  adapt  it  to  the 
changes  of  time  and  circumstances."  Munn  v.  Illinois, 
94  U.  S.  113,  134;  Martin  v.  Pittsburg  &  Lake  Erie  R.  R. 
Co.,  203  U.  S.  284,  294;  The  Lottawanna,  21  Wall.  558, 
577 ;  Western  Union  Telegraph  Co.  v.  Commercial  Milling 
Co.,  218  U.  S.  406,  417. 

Second.  The  natural  tendency  of  the  changes  de- 
scribed is  to  impel  the  carriers  to  avoid  or  prevent  the 
negligent  acts  and  omissions  which  are  made  the  bases 
of  the  rights  of  recovery  which  the  statute  creates  and 
defines;  and,  as  whatever  makes  for  that  end  tends 
to  promote  the  safety  of  the  employes  and  to  advance 
the  commerce  in  which  they  are  engaged,  we  entertain 
no  doubt  that  in  making  those  changes  Congress  acted 
within  the  Umits  of  the  discretion  confided  to  it  by  the 


842    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

Constitution.  Lottery  Case,  188  U.  S.  321,  353,  355; 
Atlantic  Coast  Line  R.  R.  Co.  v.  Riverside  Mills,  219 
U.  S.  186,  203. 

We  are  not  unmindful  that  that  end  was  being  meas- 
urably attained  through  the  remedial  legislation  of  the 
several  States,  but  that  legislation  has  been  far  from 
uniform,  and  it  undoubtedly  rested  with  Congress  to 
determine  whether  a  national  law,  operating  uniformly 
in  all  the  States  upon  all  carriers  by  railroad  engaged  in 
interstate  commerce,  would  better  subserve  the  needs 
of  that  commerce.  The  Lottawanna,  21  Wall.  558, 
581-582;  Baltimore  &  Ohio  R.  R.  v.  Buugh,  149  U.  S. 
368, 378-379. 

The  second  objection  proceeds  upon  the  theory  that, 
even  although  Congress  has  power  to  regulate  the 
liability  of  a  carrier  for  injuries  sustained  by  one  em- 
ploy6  through  the  negligence  of  another  where  all  are 
engaged  in  interstate  commerce,  that  power  does  not 
embrace  instances  where  the  negligent  employ^  is 
engaged  in  intrastate  commerce.  But  this  is  a  mistaken 
theory,  in  that  it  treats  the  source  of  the  injury,  rather 
than  its  effect  upon  interstate  commerce,  as  the  criterion 
of  congressional  power.  As  was  said  in  Southern  Railway 
Co.  V.  United  States,  222  U.  S.  20,  27,  that  power  is 
plenary  and  competently  may  be  exerted  to  secure  the 
safety  of  interstate  transportation  and  of  those  who  are 
employed  therein,  no  matter  what  the  source  of  the 
dangers  which  threaten  it.  The  present  act,  unlike  the 
one  condemned  in  Employers'  Liability  Cases,  207  U.  S. 
463,  deals  only  with  the  liability  of  a  carrier  engaged 
in  interstate  commerce  for  injuries  sustained  by  its 
employes  while  engaged  in  such  commerce.  And  this 
being  so,  it  is  not  a  valid  objection  that  the  act  embraces 


CONSTITUTIONAL   DECISIONS  843 

United  States  Supreme  Court 

instances  where  the  causal  negUgence  is  that  of  an  em- 
ploy6  engaged  in  intrastate  commerce;  for  such  negU- 
gence, when  operating  injuriously  upon  an  employe 
engaged  in  interstate  commerce,  has  the  same  effect 
upon  that  commerce  as  if  the  negligent  employ^  were 
also  engaged  therein. 

Next  in  order  is  the  objection  that  the  provision  in 
§  5,  declaring  void  any  contract,  rule,  regulation  or 
device,  the  purpose  or  intent  of  which  is  to  enable  a 
carrier  to  exempt  itself  from  the  liabihty  which  the  act 
creates,  is  repugnant  to  the  Fifth  Amendment  to  the 
Constitution  as  an  unwarranted  interference  with  the 
liberty  of  contract.  But  of  this  it  suffices  to  say,  in 
view  of  our  recent  decisions  in  Chicago,  Burlington  & 
Quincy  Railroad  Co.  v.  McGnire,  219  U.  S.  549;  Atlantic 
Coast  Line  Railroad  Co.  v.  Riverside  Mills,  219  U.  S. 
186,  and  Baltimore  &  Ohio  Railroad  Co.  v.  Interstate 
Commerce  Commission,  221  U.  S.  612,  that  if  Congress 
possesses  the  power  to  impose  that  Uability,  which  we 
here  hold  that  it  does,  it  also  possesses  the  power  to 
insure  its  efficacy  by  prohibiting  any  contract,  rule, 
regulation  or  device  in  evasion  of  it. 

Coming  to  the  question  of  classification,  it  is  true 
that  the  Uability  which  the  act  creates  is  imposed  only 
on  interstate  carriers  by  railroad,  although  there  are 
other  interstate  carriers,  and  is  imposed  for  the  benefit 
of  all  employes  of  such  carriers  by  railroad  who  are 
employed  in  interstate  commerce,  although  some  are 
not  subjected  to  the  peculiar  hazards  incident  to  the 
operation  of  trains  or  to  hazards  that  differ  from  those 
to  which  other  employes  in  such  commerce,  not  within 
the  act,  are  exposed.  But  it  does  not  follow  that  this 
classification  is  violative  of  the  "due  process  of  law" 


844    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

clause  of  the  Fifth  Amendment.  Even  if  it  be  assumed 
that  that  clause  is  equivalent  to  the  "equal  protection 
of  the  laws "  clause  of  the  Fourteenth  Amendment, 
which  is  the  most  that  can  be  claimed  for  it  here,  it 
does  not  take  from  Congress  the  power  to  classify,  nor 
does  it  condemn  exertions  of  that  power  merely  because 
they  occasion  some  inequalities.  On  the  contrary,  it 
admits  of  the  exercise  of  a  wide  discretion  in  classifying 
according  to  general,  rather  than  minute,  distinctions, 
and  condemns  what  is  done  only  when  it  is  without  any 
reasonable  basis,  and  therefore  is  purely  arbitrary. 
Lindsley  v.  Carbonic  Gas  Co.,  220  U.  S.  61,  78.  Tested 
by  these  standards,  this  classification  is  not  objection- 
able. Like  classifications  of  railroad  carriers  and  em- 
ployes for  like  purposes,  when  assailed  under  the  equal 
protection  clause,  have  been  sustained  by  repeated  de- 
cisions of  this  court.  Missouri  Pacific  Railway  Co.  v. 
Mackey,  127  U.  S.  205;  Louisville  &  Nashville  Railroad 
Co.  V.  Melton,  218  U.  S.  36;  Mobile,  Jackson  &  Kansas 
City  Railroad  Co.  v.  Turnipseed,  219  U.  S.  35. 

It  follows  that  the  answer  to  the  second  of  the  ques- 
tions before  stated  must  be  that  Congress  has  not 
exceeded  its  power  by  prescribing  the  regulations 
embodied  in  the  present  act. 

The  third  question,  whether  those  regulations  super- 
sede the  laws  of  the  States  in  so  far  as  the  latter  cover 
the  same  field,  finds  its  answers  in  the  following  extracts 
from  the  opinion  of  Chief  Justice  Marshall  in  McCulloch 
v.  Maryland,  4  Wheat.  316: 

(p.  405)  *'If  any  one  proposition  could  command 
the  universal  assent  of  mankind,  we  might  expect  it 
would  be  this: — that  the  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its 


CONSTITUTIONAL   DECISIONS  845 

United  States  Supreme  Court 

sphere  of  action.  This  would  seem  to  result  necessarily 
from  its  nature.  It  is  the  government  of  all;  its  powers 
are  delegated  by  all;  it  represents  all,  and  acts  for  all. 
Though  any  one  State  may  be  wiUing  to  control  its 
operations,  no  State  is  willing  to  allow  others  to  control 
them.  The  nation,  on  those  subjects  on  which  it  can 
act,  must  necessarily  bind  its  component  parts.  But 
this  question  is  not  left  to  mere  reason :  the  people  have, 
in  express  terms,  decided  it,  by  saying, '  this  constitution, 
and  the  laws  of  the  United  States,  which  shall  be  made 
in  pursuance  thereof,  *  *  *  shall  be  the  supreme  law 
of  the  land,'  and  by  requiring  that  the  members  of 
the  state  legislatures,  and  the  officers  of  the  executive 
and  judicial  departments  of  the  States,  shall  take  the 
oath  of  fidelity  to  it.  The  government  of  the  United 
States,  then,  though  limited  in  its  powers,  is  supreme: 
and  its  laws,  when  made  in  pursuance  of  the  consti- 
tution, form  the  supreme  law  of  the  land,  'anything  in 
the  constitution  or  laws  of  any  State,  to  the  contrary 
notwithstanding. ' 

(p.  426)  ''This  great  principle  is,  that  the  constitution 
and  the  laws  made  in  pursuance  thereof  are  supreme; 
that  they  control  the  constitution  and  laws  of  the  re- 
spective States,  and  cannot  be  controlled  by  them." 

And  particularly  apposite  is  the  repetition  of  that 
principle  in  Smith  v.  Alabama,  124  U.  S.  465,  473: 

"The-grant  of  power  to  Congress  in  the  Constitution 
to  regulate  commerce  with  foreign  nations  and  among 
the  several  States,  it  is  conceded,  is  paramount  over  all 
legislative  powers  which,  in  consequence  of  not  having 
been  granted  to  Congress,  are  reserved  to  the  States. 
It  follows  that  any  legislation  of  a  State,  although  in  pur- 
suance of  an  acknowledged  power  reserved  to  it,  which 


846    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

conflicts  with  the  actual  exercise  of  the  power  of  Congress 
over  the  subject  of  commerce,  must  give  way  before 
the  supremacy  of  the  national  authority." 

True,  prior  to  the  present  act  the  laws  of  the  several 
States  were  regarded  as  determinative  of  the  Uability 
of  employers  engaged  in  interstate  commerce  for  in- 
juries received  by  their  employes  while  engaged  in  such 
commerce.  But  that  was  because  Congress,  although 
empowered  to  regulate  that  subject,  had  not  acted 
thereon,  and  because  the  subject  is  one  which  falls 
within  the  police  power  of  the  States  in  the  absence  of 
action  by  Congress.  Sherlock  v.  Ailing,  93  U.  S.  99; 
Smith  V.  Alabama,  124  U.  S.  465,  473,  480,  482;  Nash- 
ville &c.  Railway  v.  Alabama,  128  U.  S.  96,  99;  Reid  v. 
Colorado,  187  U.  S.  137,  146.  The  inaction  of  Congress, 
however,  in  no  wise  affected  its  power  over  the  subject. 
The  Lottawanna,  21  Wall.  558,  581 ;  Gloucester  Ferry  Co. 
V.  Pennsylvania,  114  U.  S.  196,  215.  And  now  that 
Congress  has  acted,  the  laws  of  the  States,  in  so  far  as 
they  cover  the  same  field,  are  superseded,  for  necessarily 
that  which  is  not  supreme  must  yield  to  that  which  is. 
Gulf,  Colorado  &  Santa  Fe  Railway  Co.  v.  Hefley,  158 
U.  S.  98,  104;  Southern  Railway  Co.  v.  Reid,  222  U.  S. 
424;  Northern  Pacific  Railway  Co.  v.  Washington,  222 
U.  S.  370. 

We  come  next  to  consider  whether  rights  arising 
under  the  congressional  act  may  be  enforced,  as  of 
right,  in  the  courts  of  the  States  when  their  jurisdiction, 
as  prescribed  by  local  laws,  is  adequate  to  the  occasion. 
The  first  of  the  cases  now  before  us  was  begun  in  one 
of  the  Superior  Courts  of  the  State  of  Connecticut,  and, 
in  that  case,  the  Supreme  Court  of  Errors  of  the  State 
answered  the  question  in  the  negative.    That,  however, 


CONSTITUTIONAL   DECISIONS  847 

United  States  Supreme  Court  • 

was  not  because  the  ordinary  jurisdiction  of  the  Su- 
perior Courts,  as  defined  by  the  constitution  and  laws 
of  the  State,  was  deemed  inadequate  or  not  adapted  to- 
the  adjudication  of  such  a  case,  but  because  the  Su- 
preme Court  of  Errors  was  of  opinion  (1)  that  the 
congressional  act  impliedly  restricts  the  enforcement  of 
the  rights  which  it  creates  to  the  Federal  courts,  and 
(2)  that,  if  this  be  not  so,  the  Superior  Courts  are  at 
liberty  to  decline  cognizance  of  actions  to  enforce 
rights  arising  under  that  act,  because  (a)  the  policy 
manifested  by  it  is  not  in  accord  with  the  policy  of  the 
State  respecting  the  liability  of  employers  to  employes 
for  injuries  received  by  the  latter  while  in  the  service 
of  the  former,  and  (b)  it  would  be  inconvenient  and 
confusing  for  the  same  court,  in  dealing  with  cases  of 
the  same  general  class,  to  apply  in  some  the  standards 
of  right  established  by  the  congressional  act  and  in 
others  the  different  standards  recognized  by  the  laws 
of  the  State. 

We  are  quite  unable  to  assent  to  the  view  that  the 
enforcement  of  the  rights  which  the  congressional  act 
creates  was  originally  intended  to  be  restricted  to  the 
Federal  courts.  The  act  contains  nothing  which  is 
suggestive  of  such  a  restriction,  and  in  this  situation  the 
intention  of  Congress  was  reflected  by  the  provision 
in  the  general  jurisdictional  act,  ''That  the  circuit 
courts  of  the  United  States  shall  have  original  cogni- 
zance, concurrent  with  the  courts  of  the  several  States,  of 
all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
where  the  matter  in  dispute  exceeds,  exclusive  of  in- 
terest and  costs,  the  sum  or  value  of  two  thousand 
dollars,  and  arising  under  the  Constitution  or  laws  of  the 
United  States.''    August  13,  1888,  25  Stat.  433,  c.  866, 


848    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

§  1.  Robb  V.  Connolly,  111  U.  S.  624,  637;  United  States 
V.  Barnes,  222  U.  S.  513.  This  is  emphasized  by  the 
amendment  engrafted  upon  the  original  act  in  1910,  to 
the  effect  that  "The  jurisdiction  of  the  courts  of  the 
United  States  under  this  Act  shall  be  concurrent  with 
that  of  the  courts  of  the  several  States,  and  no  case  arising 
under  this  Act  and  brought  in  any  state  court  of  com- 
petent jurisdiction  shall  be  removed  to  any  court  of  the 
United  States."  The  amendment,  as  appears  by  its 
language,  instead  of  granting  jurisdiction  to  the  state 
courts,  presupposes  that  they  already  possessed  it. 

Because  of  some  general  observations  in  the  opinion 
of  the  Supreme  Court  of  Errors,  and  to  the  end  that  the 
remaining  ground  of  decision  advanced  therein  may  be 
more  accurately  understood,  we  deem  it  well  to  observe 
that  there  is  not  here  involved  any  attempt  by  Congress 
to  enlarge  or  regulate  the  jurisdiction  of  state  courts  or 
to  control  or  affect  their  modes  of  procedure,  but  only  a 
question  of  the  duty  of  such  a  court,  when  its  ordinary 
jurisdiction  as  prescribed  by  local  laws  is  appropriate 
to  the  occasion  and  is  invoked  in  conformity  with  those 
laws,  to  take  cognizance  of  an  action  to  enforce  a  right 
of  civil  recovery  arising  under  the  act  of  Congress  and 
susceptible  of  adjudication  according  to  the  prevailing 
rules  of  procedure.  We  say  "when  its  ordinary  juris- 
diction as  prescribed  by  local  laws  is  appropriate  to  the 
occasion,"  because  we  are  advised  by  the  decisions  of 
the  Supreme  Court  of  Errors  that  the  Superior  Courts 
of  the  State  are  courts  of  general  jurisdiction,  are  em- 
powered to  take  cognizance  of  actions  to  recover  for 
personal  injuries  and  for  death,  and  are  accustomed  to 
exercise  that  jurisdiction,  not  only  in  cases  where  the 
right  of  action  arose  under  the  laws  of  that  State,  but 


CONSTITUTIONAL   DECISIONS  849 

United  States  Supreme  Court 

also  in  cases  where  it  arose  in  another  State,  under  its 
laws,  and  in  circumstances  in  which  the  laws  of  Con- 
necticut give  no  right  of  recovery,  as  where  the  causal 
negUgence  was  that  of  a  fellow  servant. 

The  suggestion  that  the  act  of  Congress  is  not  in  har- 
mony with  the  policy  of  the  State,  and  therefore  that 
the  courts  of  the  State  are  free  to  decUne  jurisdiction 
is  quite  inadmissible,  because  it  presupposes  what  in 
legal  contemplation  does  not  exist.  When  Congress, 
in  the  exertion  of  the  power  confided  to  it  by  the  Con- 
stitution, adopted  that  act,  it  spoke  for  all  the  people 
and  all  the  States,  and  thereby  estabhshed  a  poUcy  for 
all.  That  policy  is  as  much  the  policy  of  Connecticut 
as  if  the  act  had  emanated  from  its  own  legislature, 
and  should  be  respected  accordingly  in  the  courts  of 
the  State.  As  was  said  by  this  court  in  Claflin  v.  House- 
man, 93  V.S.  130,  136,137: 

''The  laws  of  the  United  States  are  laws  in  the  several 
States,  and  just  as  much  binding  on  the  citizens  and 
courts  thereof  as  the  state  laws  are.  The  United  States 
is  not  a  foreign  sovereignty  as  regards  the  several 
States,  but  is  a  concurrent,  and,  within  its  jurisdiction, 
paramount  sovereignty.  *  *  *  If  an  act  of  Congress 
gives  a  penalty  [meaning  civil  and  remedial]  to  a  party 
aggrieved,  without  specifying  a  remedy  for  its  enforce- 
ment, there  is  no  reason  why  it  should  not  be  enforced, 
if  not  provided  otherwise  by  some  act  of  Congress,  by  a 
proper  action  in  a  state  court.  The  fact  that  a  state 
court  derives  its  existence  and  functions  from  the  state 
laws  is  no  reason  why  it  should  not  afford  relief;  because 
it  is  subject  also  to  the  laws  of  the  United  States,  and 
is  just  as  much  bound  to  recognize  these  as  operative 
within  the  State  as  it  is  to  recognize  the  state  laws. 
54 


850    Bradbury's  workmen's  compensation  law 

United  States  Supreme  Court 

The  two  together  form  one  system  of  jurisprudence, 
which  constitutes  the  law  of  the  land  for  the  State;  and 
the  courts  of  the  two  jurisdictions  are  not  foreign  to 
each  other,  nor  to  be  treated  by  each  other  as  such,  but 
as  courts  of  the  same  country,  having  jurisdiction  partly 
different  and  partly  concurrent.  *  *  *  It  is  true,  the 
sovereignties  are  distinct,  and  neither  can  interfere 
with  the  proper  jurisdiction  of  the  other,  as  was  so 
clearly  shown  by  Chief  Justice  Taney,  in  the  case  of 
Ableman  v.  Booth,  21  How.  506;  and  hence  the  state 
courts  have  no  power  to  revise  the  action  of  the  Federal 
courts,  nor  the  Federal  the  state,  except  where  the 
Federal  Constitution  or  laws  are  involved.  But  this 
is  no  reason  why  the  state  courts  should  not  be  open  for 
the  prosecution  of  rights  growing  out  of  the  laws  of  the 
United  States,  to  which  their  jurisdiction  is  competent, 
and  not  denied." 

We  are  not  disposed  to  beheve  that  the  exercise  of 
jurisdiction  by  the  state  courts  will  be  attended  by  any 
appreciable  inconvenience  or  confusion;  but,  be  this  as 
it  may,  it  affords  no  reason  for  declining  a  jurisdiction 
conferred  by  law.  The  existence  of  the  jurisdiction 
creates  an  implication  of  duty  to  exercise  it,  and  that 
its  exercise  may  be  onerous  does  not  militate  against 
that  implication.  Besides,  it  is  neither  new  nor  unusual 
in  judicial  proceedings  to  apply  different  rules  of  law 
to  different  situations  and  subjects,  even  although 
possessing  some  elements  of  similarity,  as  where  the 
liability  of  a  pubUc  carrier  for  personal  injuries  turns 
upon  whether  the  injured  person  was  a  passenger,  an 
employe  or  a  stranger.  But  it  never  has  been  supposed 
that  courts  are  at  liberty  to  decline  cognizance  of  cases 
of  a  particular  class  merely  because  the  rules  of  law  to 


CONSTITUTIONAL   DECISIONS  851 

United  States  Supreme  Court 

be  applied  in  their  adjudication  are  unlike  those  applied 
in  other  cases. 

We  conclude  that  rights  arising  under  the  act  in 
question  may  be  enforced,  as  of  right,  in  the  courts  of 
the  States  when  their  jurisdiction,  as  prescribed  by 
local  laws,  is  adequate  to  the  occasion. 

In  No.  289  several  rulings  in  the  progress  of  the 
cause,  not  covered  by  what  already  has  been  said,  are 
called  in  question,  but  it  suffices  to  say  of  them  that 
they  have  been  carefully  considered,  and  that  we  find 
no  reversible  error  in  them. 

In  Nos.  170,  289  and  290  the  judgments  are  affirmed, 
and  in  No.  120  the  judgment  is  reversed  and  the  cause 
is  remanded  for  further  proceedings  not  inconsistent 
with  this  opinion. 


CHAPTER  XXXIX 

TEXTS  OF  THE  COMPENSATION  AND  STATE  INSUR- 
ANCE ACTS 

Page  Page 

British 852     New  Hampshire 998 

California 872     New  Jersey 1006 

Illinois 895     Ohio 1021 

Kansas 913  Rhode  Island  and  Prov- 

Massachusetts 935  idence  Plantations  . .  1033 

Michigan 955     Washington 1058 

Nevada 989     Wisconsin 1091 

BRITISH  WORKMEN'S  COMPENSATION  ACT,   1906 
(6  Edw.  VII,  c.  58) 

An  act  to  consolidate  and  amend  the  law  with  respect  to 
Compensation  to  Workmen  for  Injuries  suffered  in  the 
course  of  their  Employment  (21st,  December,  1906). 

Be  it  enacted  by  the  King's  most  Excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  as- 
sembled, and  by  the  authority  of  the  same,  as  follows: 


(1)  If  in  any  employment  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  the  employment  is  caused 
to  a  workman,  his  employer  shall,  subject  as  hereinafter 
mentioned,  be  liable  to  pay  compensation  in  accordance 
with  the  first  schedule  to  this  act. 

(2)  Provided  that 

(a)  The  employer  shall  not  be  liable  under  this  act 
in  respect  of  any  injury  which  does  not  disable  the 
852 


TEXTS   OF   COMPENSATION   ACTS  853 

British 

workman  for  a  period  of  at  least  one  week  from  earn- 
ing full  wages  at  the  work  at  which  he  was  employed. 

(6)  When  the  injury  was  caused  by  the  personal 
negligence  or  willful  act  of  the  employer  or  of  some 
person  for  whose  act  or  default  the  employer  is  re- 
sponsible, nothing  in  this  act  shall  affect  any  civil 
liability  of  the  employer,  but  in  that  case  the  work- 
man may,  at  his  option,  either  claim  compensation 
under  this  act  or  take  proceedings  independently  of 
this  act;  but  the  employer  shall  not  be  liable  to  pay 
compensation  for  injury  to  a  workman  by  accident 
arising  out  of  and  in  the  course  of  the  employment 
both  independently  of  and  also  under  this  act,  and 
shall  not  be  liable  to  any  proceedings  independently 
of  this  act,  except  in  case  of  such  personal  negligence 
or  willful  act  as  aforesaid. 

(c)  If  it  is  proved  that  the  injury  to  a  workman  is 
attributable  to  the  serious  and  willful  misconduct  of 
the  workman,  any  compensation  claimed  in  respect  of 
that  injury  shall,  unless  the  injury  results  in  death  or 
serious  and  permanent  disablement,  be  disallowed. 

(3)  If  any  question  arises  in  any  proceedings  under  this 
act  as  to  the  liability  to  pay  compensation  under  this  act 
(including  any  question  as  to  whether  the  person  injured  is 
a  workman  to  whom  this  act  applies),  or  as  to  the  amount  or 
duration  of  compensation  under  this  act,  the  question,  if  not 
settled  by  agreement,  shall,  subject  to  the  provisions  of  the 
first  schedule  to  this  act,  be  settled  by  arbitration,  in  ac- 
cordance with  the  second  schedule  to  this  act. 

(4)  If,  within  the  time  hereinafter  in  this  act  limited  for 
taking  proceedings,  an  action  is  brought  to  recover  damages 
independently  of  this  act  for  injury  caused  by  any  accident 
and  is  determined  in  such  action  that  the  injury  is  one  for 
which  the  employer  is  not  liable  in  such  action,  but  that  he 
would  have  been  liable  to  pay  compensation  under  the  pro- 


854    Bradbury's  workmen's  compensation  law 

British 

visions  of  this  act,  the  action  shall  be  dismissed;  but  the  court 
in  which  the  action  is  tried  shall,  if  the  plaintiff  so  choose, 
proceed  to  assess  such  compensation,  but  may  deduct  from 
such  compensation  all  or  part  of  the  costs  which,  in  its  judg- 
ment, have  been  caused  by  the  plaintiff  bringing  the  action 
instead  of  proceeding  under  this  act.  In  any  proceeding 
under  this  subsection,  when  the  court  assesses  the  compensa- 
tion it  shall  give  a  certificate  of  the  compensation  it  has 
awarded  and  the  directions  it  has  given  as  to  the  deduction 
for  costs,  and  such  certificate  shall  have  the  force  and  effect 
of  an  award  under  this  act. 

(5)  Nothing  in  this  act  shall  affect  any  proceeding  for  a 
fine  under  the  enactments  relating  to  mines,  factories,  or 
workshops,  or  the  application  of  any  such  fine. 

II 

(1)  Proceedings  for  the  recovery  under  this  act  of  com- 
pensation for  an  injury  shall  not  be  maintainable  unless  no- 
tice of  the  accident  has  been  given  as  soon  as  practicable 
after  the  happening  thereof  and  before  the  workman  has 
voluntarily  left  the  employment  in  which  he  was  injured, 
and  unless  the  claim  for  compensation  with  respect  to  such 
accident  has  been  made  within  six  months  from  the  occur- 
rence of  the  accident  causing  the  injury,  or,  in  case  of  death, 
within  six  months  from  the  time  of  death : 
Provided  always  that 

(a)  The  want  of  or  any  defect  or  inaccuracy  in  such 
notice  shall  not  be  a  bar  to  the  maintenance  of  such 
proceedings  if  it  is  found  in  the  proceedings  for  set- 
tling the  claim  that  the  employer  is  not,  or  would  not, 
if  a  notice  or  an  amended  notice  were  then  given  and 
the  hearing  postponed,  be  prejudiced  in  his  defense  by 
the  want,  defect,  or  inaccuracy,  or  that  such  want, 
defect,  or  inaccuracy  was  occasioned  by  mistake,  ab- 
sence from  the  United  Kingdom,  or  other  reasonable 
cause;  and 


TEXTS   OF   COMPENSATION   ACTS  855 

British 

(6)  The  failure  to  make  a  claim  within  the  period 
above  specified  shall  not  be  a  bar  to  the  maintenance 
of  such  proceedings  if  it  is  found  that  the  failure 
was  occasioned  by  mistake,  absence  from  the  United 
Kingdom,  or  other  reasonable  cause, 

(2)  Notice  in  respect  of  an  injury  under  this  act  shall  give 
the  name  and  address  of  the  person  injured,  and  shall  state 
in  ordinary  language,  the  cause  of  the  injury  and  the  date 
at  which  the  accident  happened,  and  shall  be  served  on  the 
employer,  or,  if  there  is  more  than  one  employer,  upon  one 
of  such  employers. 

(3)  The  notice  may  be  served  by  delivering  the  same  at, 
or  sending  it  by  post  in  a  registered  letter  addressed  to,  the 
residence  or  place  of  business  of  the  person  on  whom  it  is  to 
be  served. 

(4)  Where  the  employer  is  a  body  of  persons,  corporate 
or  unincorporate,  the  notice  may  also  be  served  by  deliver- 
ing the  same  at,  or  by  sending  it  by  post  in  a  registered  letter 
addressed  to,  the  employer  at  the  office,  or,  if  there  be  more 
than  one  office,  any  one  of  the  offices  of  such  body. 

Ill 

(1)  If  the  Registrar  of  Friendly  Societies,  after  taking 
steps  to  ascertain  the  views  of  the  employer  and  workman, 
certifies  that  any  scheme  of  compensation,  benefit,  or  in- 
surance for  the  workman  of  an  employer,  in  any  employ- 
ment, whether  or  not  such  scheme  includes  other  employers 
and  their  workmen,  provides  scales  of  compensation  not  less 
favorable  to  the  workmen  and  their  dependents  than  the 
corresponding  scales  contained  in  this  act,  and  that,  where 
the  scheme  provides  for  contributions  by  the  workmen,  the 
scheme  confers  benefits  at  least  equivalent  to  those  con- 
tributions, in  addition  to  the  benefits  to  which  the  workmen 
would  have  been  entitled  under  this  act,  and  that  a  majority 
(to  be  ascertained  by  ballot)  of  the  workmen  to  whom  the 
scheme  is  applicable  are  in  favor  of  such  scheme,  the  em- 


856    Bradbury's  workmen's  compensation  law 

British 

ployer  may,  whilst  the  certificate  is  in  force,  contract  with 
any  of  his  workmen  that  the  provisions  of  the  scheme  shall 
be  substituted  for  the  provisions  of  this  act,  and  thereupon 
the  employer  shall  be  liable  only  in  accordance  with  the 
scheme,  but,  save  as  aforesaid,  this  act  shall  apply  notwith- 
standing any  contract  to  the  contrary  made  after  the  com- 
mencement of  this  act. 

(2)  The  registrar  may  give  a  certificate  to  expire  at  the 
end  of  a  limited  period  of  not  less  than  five  years,  and  may 
from  time  to  time  renew  with  or  without  modifications  such 
a  certificate  to  expire  at  the  end  of  the  period  for  which  it  is 
renewed. 

(3)  No  scheme  shall  be  certified  which  contains  an  obliga- 
tion upon  the  workmen  to  join  the  scheme  as  a  condition  of 
their  hiring,  or  which  does  not  contain  provisions  enabling  a 
workman  to  withdraw  from  the  scheme. 

(4)  If  complaint  is  made  to  the  Registrar  of  Friendly 
Societies  by  or  on  behalf  of  the  workmen  of  any  employer 
that  the  benefits  conferred  by  any  scheme  no  longer  conform 
to  the  conditions  stated  in  subsection  (1)  of  this  section,  or 
that  the  provisions  of  such  scheme  are  being  violated,  or  that 
the  scheme  is  not  being  fairly  administered,  or  that  satis- 
factory reasons  exist  for  revoking  the  certificate,  the  registrar 
shall  examine  into  the  complaint,  and,  if  satisfied  that  good 
cause  exists  for  such  complaint,  shall,  unless  the  cause  of 
complaint  is  removed,  revoke  the  certificate. 

(5)  When  a  certificate  is  revoked  or  expires,  any  moneys 
or  securities  held  for  the  purpose  of  the  scheme  shall,  after 
due  provision  has  been  made  to  discharge  the  liabilities  al- 
ready accrued,  be  distributed  as  may  be  arranged  between 
the  employer  and  workmen,  or  as  may  be  determined  by  the 
Registrar  of  Friendly  Societies  in  the  event  of  a  difference  of 
opinion. 

(6)  Whenever  a  scheme  has  been  certified  as  aforesaid,  it 
shall  be  the  duty  of  the  employer  to  answer  all  such  inquiries 


TEXTS   OF   COMPENSATION   ACTS  857 

British 

and  to  furnish  all  such  accounts  in  regard  to  the  scheme  as 
may  be  made  or  required  by  the  Registrar  of  Friendly  So- 
cieties. 

(7)  The  Chief  Registrar  of  Friendly  Societies  shall  include 
in  his  annual  report  the  particulars  of  the  proceedings  of  the 
registrar  under  this  act. 

(8)  The  Chief  Registrar  of  Friendly  Societies  may  make 
regulations  for  the  purpose  of  carrying  this  section  into  effect. 

IV 

(1)  Where  any  person  (in  this  section  referred  to  as  the 
principal)  in  the  course  of  or  for  the  purposes  of  his  trade  or 
business,  contracts  with  any  other  person  (in  this  section 
referred  to  as  the  contractor)  for  the  execution  by  or  under 
the  contractor  of  the  whole  or  any  part  of  any  work  under- 
taken by  the  principal,  the  principal  shall  be  liable  to  pay  to 
any  workman  employed  in  the  execution  of  the  work  any 
compensation  under  this  act  which  he  would  have  been  liable 
to  pay  if  that  workman  had  been  immediately  employed  by 
him;  and  where  compensation  is  claimed  from  or  proceed- 
ings are  taken  against  the  principal,  then,  in  the  application 
of  this  act  references  to  the  principal  shall  be  substituted  for 
the  references  to  the  employer,  except  that  the  amount  of 
compensation  shall  be  calculated  with  reference  to  the  earn- 
ings of  the  workman  under  the  employer  by  whom  he  is 
immediately  employed: 

Provided,  that,  where  the  contract  relates  to  threshing, 
plowing,  or  other  agricultural  work,  and  the  contractor  pro- 
vides and  uses  machinery  driven  by  mechanical  power  for  the 
purpose  of  such  work,  he  and  he  alone  shall  be  liable  under 
this  act  to  pay  compensation  to  any  workman  employed  by 
him  on  such  work. 

(2)  Where  the  principal  is  liable  to  pay  compensation 
under  this  section,  he  shall  be  entitled  to  be  indemnified  by 
any  person  who  would  have  been  liable  to  pay  compensation 


858    Bradbury's  workmen's  compensation  law 

British 

to  the  workman  independently  of  this  section,  and  all  ques- 
tions as  to  the  right  and  amount  of  any  such  indemnity  shall 
in  default  of  agreement  be  settled  by  arbitration  under  this 
act. 

(3)  Nothing  in  this  section  shall  be  construed  as  prevent- 
ing a  workman  recovering  compensation  under  this  act  from 
the  contractor  instead  of  the  principal. 

(4)  This  section  shall  not  apply  in  any  case  where  the  acci- 
dent occurred  elsewhere  than  on,  or  in,  or  about  premises  on 
which  the  principal  has  undertaken  to  execute  the  work  or 
which  are  otherwise  under  his  control  or  management. 

V 

(1)  Where  any  employer  has  entered  into  a  contract  with 
any  insurers  in  respect  of  any  liability  under  this  act  to 
any  workman,  then,  in  the  event  of  the  employer  becoming 
bankrupt,  or  making  a  composition  or  arrangement  with  his 
creditors,  or  if  the  employer  is  a  company  in  the  event  of  the 
company  having  commenced  to  be  wound  up,  the  rights  of 
the  employer  against  the  insurers  as  respects  that  liability 
shall,  notwithstanding  anything  in  the  enactments  relating 
to  bankruptcy  and  the  winding  up  of  companies,  be  trans- 
ferred to  and  vest  in  the  workmen,  and  upon  any  such  trans- 
fers the  insurer  shall  have  the  same  rights  and  remedies  and 
be  subject  to  the  same  liabilities  as  if  they  were  the  em- 
ployer, so  however  that  the  insurers  shall  not  be  under  any 
greater  liability  to  the  workman  than  they  would  have  been 
under  to  the  employer. 

(2)  If  the  liability  of  the  insurers  to  the  workman  is  less 
than  the  Uabihty  of  the  employer  to  the  workman,  the  work- 
man may  prove  for  the  balance  in  the  bankruptcy  or  liquida- 
tion. 

(3)  There  shall  be  included  among  the  debts  which  under 
section  one  of  the  Preferential  Payments  in  Bankruptcy 
Act,  1888,  and  section  four  of  the  Preferential  Payments  in 
Bankruptcy  (Ireland)  Act,  1889,  are  in  the  distribution  of 


TEXTS   OF   COMPENSATION   ACTS  859 

British 

the  property  of  a  bankrupt  and  in  the  distribution  of  the 
assets  of  a  company  being  wound  up  to  be  paid  in  priority  to 
all  other  debts,  the  amount,  not  exceeding  in  any  individual 
case  one  hundred  pounds,  due  in  respect  of  any  compensa- 
tion the  liability  wherefor  accrued  before  the  date  of  the 
receiving  order  or  the  date  of  the  commencement  of  the 
winding  up,  and  those  acts  and  the  Preferential  Payments  in 
Bankruptcy  Amendment  Act,  1897,  shall  have  effect  ac- 
cordingly. Where  the  compensation  is  a  weekly  payment, 
the  amount  due  in  respect  thereof  shall,  for  the  purposes  of 
this  provision  be  taken  to  be  the  amount  of  the  lump  sum 
for  which  the  weekly  payment  could,  if  redeemable,  be  re- 
deemed if  the  employer  made  an  application  for  that  purpose 
under  the  first  schedule  to  this  act. 

(4)  In  the  case  of  the  winding  up  of  a  company  within  the 
meaning  of  the  Stannaries  Act,  1887,  such  an  amount  as 
aforesaid,  if  the  compensation  is  payable  to  a  miner  or  the 
dependents  of  a  miner,  shall  have  a  like  priority  as  is  con- 
ferred on  wages  of  miners  by  section  nine  of  that  act,  and  that 
section  shall  have  effect  accordingly. 

(5)  The  provisions  of  this  section  with  respect  to  prefer- 
ences and  priorities  shall  not  apply  where  the  bankrupt  or 
the  company  being  wound  up  has  entered  into  such  a  con- 
tract with  insurers  as  aforesaid. 

(6)  This  section  shall  not  apply  where  a  company  is 
wound  up  voluntarily  merely  for  the  purposes  of  reconstruc- 
tion or  of  amalgamation  with  another  company. 

VI  , 

Where  the  injury  for  which  compensation  is  payable  under 
this  act  was  caused  under  circumstances  creating  a  legal  lia- 
bility in  some  person  other  than  the  employer  to  pay  dam- 
ages in  respect  thereof: 

(1)  The  workman  may  take  proceedings  both 
against  that  person  to  recover  damages  and  against 
any  person  liable  to  pay  compensation  under  this  act 


8G0    Bradbury's  workmen's  compensation  law 

British 

for  such  compensation,  but  shall  not  be  entitled  to 
recover  both  damages  and  compensation;  and 

(2)  If  the  workman  has  recovered  compensation 
under  this  act  the  person  by  whom  the  compensation 
was  paid  (and  any  person  who  has  been  called  on  to 
pay  an  indemnity  under  the  section  of  this  act  relat- 
ing to  subcontracting)  shall  be  entitled  to  be  in- 
demnified by  the  person  so  liable  to  pay  damages  as 
aforesaid,  and  all  questions  as  to  the  right  to  and 
amount  of  any  such  indemnity  shall,  in  default  of 
agreement,  be  settled  by  action,  or,  by  consent  of  the 
parties,  by  arbitration  under  this  act. 

VII 

(1)  This  act  shall  apply  to  masters,  seamen,  and  appren- 
tices to  the  sea  service  and  apprentices  in  the  sea  fishing 
service,  provided  that  such  persons  are  workmen  within  the 
meaning  of  this  act,  and  are  members  of  the  crew  of  any  ship 
registered  in  the  United  Kingdom,  or  of  any  other  British 
ship  or  vessel  of  which  the  owner,  or  (if  there  is  more  than 
one  owner)  the  managing  owner,  or  manager  resides  or  has 
his  principal  place  of  business  in  the  United  Kingdom,  sub- 
ject to  the  following  modifications: 

(a)  The  notice  of  accident  and  the  claim  for  com- 
pensation may,  except  where  the  person  injured  is  the 
master,  be  served  on  the  master  of  the  ship  as  if  he 
were  the  employer,  but  where  the  accident  happened 
and  the  incapacity  commenced  on  board  the  ship  it 
shall  not  be  necessary  to  give  any  notice  of  the 
accident; 

(6)  In  the  case  of  the  death  of  the  master,  seaman, 
or  apprentice,  the  claim  for  compensation  shall  be 
made  within  six  months  after  news  of  the  death  has 
been  received  by  the  claimant; 

(c)  Where  an  injured  master,  seaman,  or  apprentice 
is  discharged  or  left  behind  in  a  British  possession,  or 


TEXTS   OF   COMPENSATION    ACTS  861 

British 

in  a  foreign  country,  depositions  respecting  the  cir- 
cumstances and  nature  of  the  injury  may  be  taken  by 
any  judge  or  magistrate  in  the  British  possession,  and 
by  any  British  consular  officer  in  the  foreign  country, 
and  if  so  taken  shall  be  transmitted  by  the  person  by 
whom  they  are  taken  to  the  Board  of  Trade,  and  such 
depositions  or  certified  copies  thereof  shall  in  any 
proceedings  for  enforcing  the  claim  be  admissible  in 
evidence  as  provided  by  sections  six  hundred  and 
ninety-one  and  six  hundred  and  ninety-five  of  the 
Merchant  Shipping  Act,  1894,  and  those  sections  shall 
apply  accordingly; 

(d)  In  the  case  of  the  death  of  a  master,  seaman,  or 
apprentice,  leaving  no  dependents,  no  compensation 
shall  be  payable,  if  the  owner  of  the  ship  is  under  the 
Merchant  Shipping  Act,  1894,  liable  to  pay  the  ex- 
penses of  the  burial; 

(e)  The  weekly  payment  shall  not  be  payable  in 
respect  of  the  period  during  which  the  owner  of  the 
ship  is,  under  the  Merchant  Shipping  Act,  1894,  as 
amended  by  any  subsequent  enactment,  or  other- 
wise, liable  to  defray  the  expenses  of  maintenance  of 
the  injured  master,  seaman,  or  apprentice; 

(/)  Any  sum  payable  by  the  way  of  compensation 
by  the  owner  of  a  ship  under  this  act  shall  be  paid  in 
full  notwithstanding  anything  in  section  five  hundred 
and  three  of  the  Merchant  Shipping  Act,  1894  (which 
relates  to  the  limitation  of  a  shipowner's  liabiHty  in 
certain  cases  of  loss  of  life,  injury  or  damage),  but  the 
limitation  on  the  owner's  liability  imposed  by  that 
section  shall  apply  to  the  amount  recoverable  by  way 
of  indemnity  under  the  section  of  this  act  relating  to 
remedies  both  against  employer  and  stranger  as  if  the 
indemnity  were  damages  for  the  loss  of  life  or  per- 
sonal injury; 


862    Bradbury's  workmen's  compensation  law 

British 

(g)  Subsections  (2)  and  (3)  of  section  one  hundred 
and  seventy-four  of  the  Merchant  Shipping  Act,  1894 
(which  relates  to  the  recovery  of  wages  of  seamen  lost 
with  their  ship),  shall  apply  as  respects  proceedings 
for  the  recovery  of  compensation  by  dependents  of 
masters,  seamen  and  apprentices  lost  with  their  ship 
as  they  apply  with  respect  to  proceedings  for  the  re- 
covery of  wages  due  to  seamen  and  apprentices;  and 
proceedings  for  the  recovery  of  compensation  shall  in 
such  a  case  be  maintainable  if  the  claim  is  made  within 
eighteen  months  of  the  date  at  which  the  ship  is 
deemed  to  have  been  lost  with  all  hands; 

(2)  This  act  shall  not  apply  to  such  members  of  the  crew 
of  a  fishing  vessel  as  are  remunerated  by  shares  in  the  profits 
or  the  gross  earnings  of  the  working  of  such  vessel. 

(3)  This  section  shall  extend  to  pilots  to  whom  Part  X  of 
the  Merchant  Shipping  Act,  1894,  applies,  as  if  a  pilot  when 
employed  on  any  such  ship  as  aforesaid  were  a  seaman  and 
a  member  of  the  crew. 

VIII 

(1)  Where— 

(1)  The  certifying  surgeon  appointed  under  the 
Factory  and  Workshop  Act,  1901,  for  the  district  in 
which  a  workman  is  employed  certifies  that  the  work- 
man is  suffering  from  a  disease  mentioned  in  the  third 
schedule  to  this  act,  and  is  thereby  disabled  from 
earning  full  wages  at  the  work  at  which  he  was  em- 
ployed; or 

(2)  A  workman  is,  in  pursuance  of  any  special  rules 
or'  regulations  made  under  the  Factory  and  Workshop 
Act,  1901,  suspended  from  his  usual  employment  on 

;  account  of  having  contracted  any  such  disease;  or 

(3)  The  death  of  a  workman  is  caused  by  any  such 
disease  and  the  disease  is  due  to  the  nature  of  any 


TEXTS   OF   COMPENSATION   ACTS  863 

British 

employment  in  which  the  workman  was  employed  at 
any  time  within  the  twelve  months  previous  to  the 
date  of  the  disablement  or  suspension,  whether  under 
one  or  more  employers;  he  or  his  dependents  shall  be 
entitled  to  compensation  under  this  act  as  if  the 
disease  or  such  suspension  as  aforesaid  were  a  per- 
sonal injury  by  accident  arising  out  of  and  in  the 
course  of  that  employment,  subject  to  the  following 
modifications : 

(a)  The  disablement  or  suspension  shall  be  treated 
as  the  happening  of  the  accident; 

(6)  If  it  be  proved  that  the  workman  has  at  the 
time  of  entering  the  employment  willfully  and  falsely 
represented  himself  in  writing  as  not  having  previously 
suffered  from  the  disease,  compensation  shall  not  he 
payable; 

(c)  The  compensation  shall  be  recoverable  from  the 
employer  who  last  employed  the  workman  during  the 
last  twelve  months  in  the  employment  to  the  nature 
of  which  the  disease  was  due; 
Provided  that — 

(i)  The  workman  or  his  dependents  if  so  required 
shall  furnish  that  employer  with  such  information  as 
to  the  names  and  addresses  of  all  the  other  employers 
who  employed  him  in  the  employment  during  the  said 
twelve  months  as  he  or  they  may  possess,  and,  if  such 
information  is  not  furnished,  or  is  not  sufficient  to 
enable  that  employer  to  take  proceedings  under  the 
next  following  proviso,  that  employer  upon  proving 
that  the  disease  was  not  contracted  whilst  the  work- 
man was  in  his  employment  shall  not  be  liable  to  pay 
compensation;  and 

(ii)  If  that  employer  alleges  that  the  disease  was 
in  fact  contracted  whilst  the  workman  was  in  the 
employment  of  some  other  employer,  and  not  whilst 


864    Bradbury's  workmen's  compensation  law 


British 


in  his  employment,  he  may  join  such  other  employer 
as  a  party  to  the  arbitration,  and  if  the  allegation  is 
proved  that  other  employer  shall  be  the  employer 
from  whom  the  compensation  is  to  be  recoverable ;  and 
(iii)  If  the  disease  is  of  such  a  nature  as  to  be  con- 
tracted by  a  gradual  process,  any  other  employers 
who  during  the  said  twelve  months  employed  the 
workman  in  the  employment  to  the  nature  of  which 
the  disease  was  due  shall  be  liable  to  make  to  the  em- 
ployer from  whom  compensation  is  recoverable  such 
contributions  as,  in  default  of  agreement,  may  be 
determined  in  the  arbitration  under  this  act  for  set- 
tUng  the  amount  of  the  compensation; 

(d)  The  amount  of  the  compensation  shall  be  cal- 
culated with  reference  to  the  earnings  of  the  workman 
under  the  employer  from  whom  the  compensation  is 
recoverable; 

(e)  The  employer  to  whom  notice  of  the  death,  dis- 
ablement, or  suspension  is  to  be  given  shall  be  the 
employer  who  last  employed  the  workman  during  the 
said  twelve  months  in  the  employment  to  the  nature 
of  which  the  disease  was  due,  and  the  notice  may  be 
given  notwithstanding  that  the  workman  has  vol- 
untarily left  his  employment. 

(/)  If  an  employer  or  a  workman  is  agreed  by  the 
action  of  a  certifying  or  other  surgeon  in  giving  or 
refusing  to  give  a  certificate  of  disablement  or  in  sus- 
pending or  refusing  to  suspend  a  workman  for  the 
purposes  of  this  section,  the  matter  shall  in  accord- 
ance with  regulations  made  by  the  Secretary  of  State 
be  referred  to  a  medical  referee,  whose  decision  shall 
be  final. 
(2)  If  the  workman  at  or  immediately  before  the  date  of 
the  disablement  or  suspension  was  employed  in  any  process 
mentioned  in  the  second  column  of  the  third  schedule  to  this 


TEXTS   OF   COMPENSATION   ACTS  865 

British 

act,  and  the  disease  contracted  is  the  disease  in  the  first 
column  of  that  schedule  set  opposite  the  description  of  the 
process,  the  disease,  except  where  the  certifying  surgeon 
certifies  that  in  his  opinion  the  disease  was  not  due  to  the 
nature  of  the  employment,  shall  be  deemed  to  have  been  due 
to  the  nature  of  that  employment,  unless  the  employer 
proves  the  contrary. 

(3)  The  Secretary  of  State  may  make  rules  regulating  the 
duties  and  fees  of  certifying  and  other  surgeons  (including 
dentists)  under  this  section. 

(4)  For  the  purposes  of  this  section  the  date  of  disable- 
ment shall  be  such  date  as  the  certifying  surgeon  certifies  as 
the  date  on  which  the  disablement  commenced,  or,  if  he  is 
unable  to  certify  such  a  date,  the  date  on  which  the  certifi- 
cate is  given.    Provided  that — 

(a)  Where  the  medical  referee  allows  an  appeal 
against  a  refusal  by  a  certifying  surgeon  to  give  a  cer- 
tificate of  disablement,  the  date  of  disablement  shall 
be  such  date  as  the  medical  referee  may  determine; 

(6)  Where  a  workman  dies  without  having  ob- 
tained a  certificate  of  disablement,  or  is  at  the  time 
of  death  not  in  receipt  of  a  weekly  payment  on  ac- 
count of  disablement,  it  shall  be  the  date  of  death. 

(5)  In  such  cases,  and  subject  to  such  conditions  as  the 
Secretary  of  State  may  direct,  a  medical  practitioner  ap- 
pointed by  the  Secretary  of  State  for  the  purpose  shall  have 
the  power  and  duties  of  a  certifying  surgeon  under  this  sec- 
tion, and  this  section  shall  be  construed  accordingly. 

(6)  The  Secretary  of  State  may  make  orders  for  extending 
the  provisions  of  this  section  to  other  diseases  and  other 
processes,  and  to  injuries  due  to  the  nature  of  any  employ- 
ment specified  in  the  order  not  being  injuries  by  accident, 
either  without  modification  or  subject  to  such  modification 
as  may  be  contained  in  the  order. 

(7)  Where  after  inquiry  held  on  the  application  of  any 

55 


866    Bradbury's  workmen's  compensation  law 

British 

employer  or  workman  engaged  in  any  industry  to  which  this 
section  applies,  it  appears  that  a  mutual  trade  insurance 
company  or  society  for  insuring  against  the  risks  under  this 
section  has  been  established  for  the  industry,  and  that  a 
majority  of  the  employers  engaged  in  that  industry  are  in- 
sured against  such  risks  in  the  company  or  society  and  that 
the  company  or  society  consents,  the  Secretary  of  State  may, 
by  provisional  order,  require  all  employers  in  that  industry 
to  insure  in  the  company  or  society  upon  such  conditions  and 
subject  to  such  exceptions  as  may  be  set  forth  in  the  order. 
Where  such  a  company  or  society  has  been  established,  but 
is  confined  to  employers  in  any  particular  locality  or  of  any 
particular  class,  the  Secretary  of  State  may  for  the  purposes 
of  this  provision  treat  the  industry,  as  carried  on  by  em- 
ployers in  that  locality  or  of  that  class,  as  a  separate  in- 
dustry. 

(8)  A  provisional  order  made  under  this  section  shall  be  of 
no  force  whatever  unless  and  until  it  is  confirmed  by  Parlia- 
ment, and  if,  while  the  bill  confirming  any  such  order  is 
pending  in  either  House  of  Parliament,  a  petition  is  pre- 
sented against  the  order,  the  bill  may  be  referred  to  a  select 
committee,  and  the  petitioner  shall  be  allowed  to  appear  and 
oppose  as  in  the  case  of  private  bills,  and  any  act  confirming 
any  provisional  order  under  this  section  may  be  repealed, 
altered,  or  amended  by  a  provisional  order  made  and  con- 
firmed in  like  manner. 

(9)  Any  expenses  incurred  by  the  Secretary  of  State  in 
respect  of  any  such  order,  provisional  order,  or  confirming 
bill  shall  be  defrayed  out  of  moneys  provided  by  Parliament. 

(10)  Nothing  in  this  section  shall  affect  the  rights  of  a 
workman  to  recover  compensation  in  respect  of  a  disease  to 
which  this  section  does  not  apply,  if  the  disease  is  a  personal 
injury  by  accident  within  the  meaning  of  this  act. 

IX 

(1)  This  act  shall  not  apply  to  persons  in  the  naval  or 


TEXTS   OF   COMPENSATION   ACTS  867 

British 

military  service  of  the  Crown,  but  otherwise  shall  apply  to 
workmen  employed  by  or  under  the  Crown  to  whom  this 
act  would  apply  if  the  employer  were  a  private  person: 

Provided  that  in  the  case  of  a  person  employed  in  the 
private  service  of  the  Crown,  the  head  of  that  department  of 
the  royal  household  in  which  he  was  employed  at  the  time 
of  the  accident  shall  be  deemed  to  be  his  employer. 

(2)  The  treasury  may,  by  a  warrant  laid  before  Parlia- 
ment, modify  for  the  purposes  of  this  act  their  warrant  made 
under  section  one  of  the  Superannuation  Act,  1887,  and  not- 
withstanding anything  in  that  act,  or  any  such  warrant,  may 
frame  schemes  with  a  view  to  their  being  certified  by  the 
Registrar  of  Friendly  Societies  imder  this  act. 

X 

(1)  The  Secretary  of  State  may  appoint  such  legally 
qualified  medical  practitioners  to  be  medical  referees  for  the 
purposes  of  this  act  as  he  may,  with  the  sanction  of  the 
treasury,  determine,  and  remuneration  of,  and  other  ex- 
penses incurred  by,  medical  referees  under  this  act  shall, 
subject  to  regulations  made  by  the  treasury,  be  paid  out  of 
moneys  provided  by  Parliament. 

Where  a  medical  referee  has  been  employed  as  a  medical 
practitioner  in  connection  with  any  case  by  or  on  behalf  of 
an  employer  or  workman  or  by  any  insurers  interested,  he 
shall  not  act  as  medical  referee  in  that  case. 

(2)  The  remuneration  of  an  arbitrator  appointed  by  a 
judge  of  the  county  courts  under  the  second  schedule  to  this 
act  shall  be  paid  out  of  moneys  provided  by  Parliament  in 
accordance  with  regulations  made  by  the  treasury. 

XI 

(1)  If  it  is  alleged  that  the  owners  of  any  ship  are  liable 
as  such  owners  to  pay  compensation  under  this  act,  and  at 
any  time  that  ship  is  found  in  any  port  or  river  of  England 
or  Ireland,  or  within  three  miles  of  the  coast  thereof,  a  judge 


868    Bradbury's  workmen's  compensation  law 

British 

of  any  court  of  record  in  England  or  Ireland  may,  upon  its 
being  shown  to  him  by  any  person  applying  in  accordance 
with  the  rules  of  the  court  that  the  owners  are  probably 
liable  as  such  to  pay  such  compensation,  and  that  none  of 
the  owners  reside  in  the  United  Kingdom,  issue  an  order 
directed  to  any  officer  of  customs  or  other  officer  named  by 
the  judge  requiring  him  to  detam  the  ship  until  such  time 
as  the  owners,  agent,  master,  or  consignee  thereof  have  paid 
such  compensation,  or  have  given  security,  to  be  approved 
by  the  judge,  to  abide  the  event  of  any  proceedings  that  may 
be  instituted  to  recover  such  compensation  and  to  pay  such 
compensation  and  costs  as  may  be  awarded  thereon;  and 
any  officer  of  customs  or  other  officer  to  whom  the  order  is 
directed  shall  detain  the  ship  accordingly. 

(2)  In  any  legal  proceeding  to  recover  such  compensation, 
the  person  giving  security  shall  be  made  the  defendant,  and 
the  production  of  the  order  of  the  judge,  made  in  relation 
to  the  security,  shall  be  conclusive  evidence  of  the  liability 
of  the  defendant  to  the  proceeding, 

(3)  Section  six  hundred  and  ninety-two  of  the  Merchant 
Shipping  Act,  1894,  shall  apply  to  the  detention  of  a  ship 
under  this  act  as  it  applies  to  the  detention  of  a  ship  under 
that  act,  and,  if  the  owner  of  a  ship  is  a  corporation,  it  shall 
for  the  purposes  of  this  section  be  deemed  to  reside  in  the 
United  Kingdom  if  it  has  an  office  in  the  United  Kingdom 
at  which  service  of  writs  can  be  effected. 

XII 

(1)  Every  employer  in  any  industry  to  which  the  Secre- 
tary of  State  may  direct  that  this  section  shall  apply  shall, 
on  or  before  such  day  in  every  year  as  the  Secretary  of  State 
may  direct,  send  to  the  Secretary  of  State  a  correct  return 
specifying  the  number  of  injuries  in  respect  of  which  com- 
pensation has  been  paid  by  him  under  this  act  during  the 
previous  year,  and  the  amount  of  such  compensation,  to- 
gether with  such  other  particulars  as  to  the  compensation  as 


TEXTS   OF   COMPENSATION   ACTS  869 

British 

the  Secretary  of  State  may  direct,  and  in  default  of  com- 
plying with  this  section  shall  be  liable  on  conviction  under 
the  Summary  Jurisdiction  Acts  to  a  fine  not  exceeding  five 
pounds. 

(2)  Any  regulations  made  by  the  Secretary  of  State  con- 
taining such  directions  as  aforesaid  shall  be  laid  before  both 
Houses  of  Parliament  as  soon  as  may  be  after  they  are  made. 

XIII 

In  this  act,  unless  the  context  otherwise  requires,  "Em- 
ployer" includes  any  bodj'^  of  persons  corporate  or  incorpo- 
rate and  the  legal  personal  representative  of  a  deceased 
emplo3'er,  and  where  the  services  of  a  workman  are  tem- 
porarily lent  or  let  on  hire  to  another  person  with  whom 
the  workman  has  entered  into  a  contract  of  service  or  ap- 
prenticeship, the  latter  shall,  for  the  purposes  of  this  act,  be 
deemed  to  continue  to  be  the  employer  of  the  v/orkman 
whilst  he  is  working  for  that  other  person; 

"Workman"  does  not  include  any  person  employed  other- 
wise than  by  way  of  manual  labor  whose  remuneration  ex- 
ceeds two  hundred  and  fifty  pounds  a  year,  or  a  person  whose 
employment  is  of  a  casual  nature  and  who  is  employed  other- 
wise than  for  the  purposes  of  the  employer's  trade  or  business, 
or  a  member  of  a  police  force,  or  an  out-worker,  or  a  member 
of  the  employer's  family  dwelling  in  his  house,  but,  save  as 
aforesaid,  means  any  person  who  has  entered  into  or  works 
under  a  contract  of  service  or  apprenticeship  with  an  em- 
ployer, whether  by  way  of  manual  labor,  clerical  work,  or 
otherwise,  and  whether  the  contract  is  expressed  or  implied, 
or  oral  or  in  writing; 

Any  reference  to  a  workman  who  has  been  injured  shall, 
where  the  workman  is  dead,  include  a  reference  to  his  legal 
personal  representative  or  to  his  dependents  or  other  per- 
sons to  whom  or  for  whose  benefit  compensation  is  payable; 

"Dependents"  means  such  of  the  members  of  the  work- 
man's family  as  were  wholly  or  in  part  dependent  upon  the 


870    Bradbury's  workmen's  compensation  law 

British 

earnings  of  the  workman  at  the  time  of  his  death,  or  would 
but  for  the  incapacity  due  to  the  accident  have  been  so  de- 
pendent, and  where  the  workman,  being  the  parent  or  grand- 
parent of  an  illegitimate  child,  leaves  such  a  child  so  de- 
pendent upon  his  earnings  or  being  an  illegitimate  child, 
leaves  a  parent  or  grandparent  so  dependent  upon  his  earn- 
ings, shall  include  such  an  illegitimate  child  and  parent  or 
grandparent  respectively. 

"Members  of  a  family"  means  wife  or  husband,  father, 
mother,  grandfather,  grandmother,  stepfather,  stepmother, 
son,  daughter,  grandson,  granddaughter,  stepson,  stepdaugh- 
ter, brother,  sister,  half-brother,  half-sister; 

"Ship,"  "vessel,"  "seaman,"  and  "port"  have  the  same 
meaning  as  in  the  Merchant  Shipping  Act,  1894; 

"Manager,"  in  relation  to  a  ship  means  the  ship's  husband 
or  other  person  to  whom  the  management  of  the  ship  is  en- 
trusted by  or  on  behalf  of  the  owner; 

"Police  force"  means  a  police  force  to  which  the  Police 
Act,  1890,  or  the  Police  (Scotland)  Act,  1890,  The  City  of 
London  Police  Force,  The  Royal  Irish  Constabulary,  and 
The  Dublin  Metropolitan  Police  Force; 

"  Outworker"  means  a  person  to  whom  articles  or  materials 
are  given  out  to  be  made  up,  cleaned,  washed,  altered,  orna- 
mented, finished,  or  repaired,  or  adapted  for  sale,  in  his  own 
home  or  on  other  premises  not  under  the  control  or  manage- 
ment of  the  person  who  gave  out  the  materials  or  articles. 

The  exercise  and  performance  of  the  powers  and  duties  of 
a  local  or  other  public  authority  shall,  for  the  purposes  of 
this  act  be  treated  as  the  trade  or  business  of  the  authority; 

"County  Court,"  "Judge  of  the  county  court,"  "registrar 
of  the  county  court,"  "plaintiff,"  and  "rules  of  court,"  as 
respects  Scotland,  means  respectively  sheriff  court,  sheriff, 
sheriff  clerk,  pursuer,  and  act  of  sederunt. 

XIV 

In  Scotland,  where  a  workman  raises  an  action  against  his 


TEXTS   OF   COMPENSATION   ACTS  871 

British 

employer  independently  of  this  act  in  respect  of  any  injury 
caused  by  accident  arising  out  of  and  in  the  course  of  the 
employment,  the  action,  if  raised  in  the  sheriff  court  and  con- 
cluding for  damages  under  the  Employers'  Liability  Act, 
1880,  or  alternatively  at  common  law  or  under  the  Em- 
ployers' Liability  Act,  1880,  shall,  notwithstanding  anything 
contained  in  that  act,  not  be  removed  under  that  act  or 
otherwise  to  the  Court  of  Sessions,  nor  shall  it  be  appealed 
to  that  court  otherwise  than  by  appeal  on  a  question  of  law; 
and  for  the  purposes  of  such  appeal  the  provisions  of  the 
second  schedule  to  this  act  in  regard  to  an  appeal  from  the 
decision  of  the  sheriff  on  any  question  of  law  determined  by 
him  as  arbitrator  under  this  act  shall  apply. 

XV 

(1)  Any  contract  (other  than  a  contract  substituting  the 
provision  of  a  scheme  certified  under  the  Workmen's  Com- 
pensation Act,  1897,  for  the  provisions  of  that  act)  existing 
at  the  commencement  of  this  act,  whereby  a  workman  re- 
linquishes any  right  to  compensation  from  the  employer  for 
personal  injury  arising  out  of  and  in  the  course  of  his  employ- 
ment, shall  not,  for  the  purposes  of  this  act,  be  deemed  to 
continue  after  the  time  at  which  the  workman's  contract  of 
service  would  continue  if  notice  of  the  determination  thereof 
were  given  at  the  commencement  of  this  act. 

(2)  Every  scheme  under  the  Workmen's  Compensation 
Act,  1897,  in  force  at  the  commencement  of  this  act  shall,  if 
re-certified  by  the  Registrar  of  Friendly  Societies,  have  ef- 
fect as  if  it  were  a  scheme  under  this  act. 

(3)  The  registrar  shall  re-certify  any  such  scheme  if  it  is 
proposed  to  his  satisfaction  that  the  scheme  conforms,  or 
has  been  so  modified  as  to  conform,  with  the  provisions  of 
this  act  as  to  schemes. 

(4)  If  any  such  scheme  has  not  been  so  re-certified  before 
the  expiration  from  the  commencement  of  this  act,  the 
certificate  shall  be  revoked. 


872    Bradbury's  workmen's  compensation  law 

California 

XVI 

(1)  This  act  shall  come  into  operation  on  the  first  day  of 
July,  nineteen  hundred  and  seven,  but,  except  so  far  as  it  re- 
lates to  references  to  medical  references,  and  proceedings 
consequential  thereon,  shall  not  apply  in  any  case  where  the 
accident  happened  before  the  commencement  of  this  act. 

(2)  The  Workmen's  Compensation  Acts,  1897  and  1900, 
are  hereby  repealed,  but  shall  continue  to  apply  the  cases 
where  the  accident  happened  before  the  commencement  of 
this  act,  except  to  the  extent  to  which  this  act  applies  to 
those  cases. 

XVII 

This  act  may  be  cited  as  the  Workmen's  Compensation 
Act,  1906. 

CALIFORNU 

(L.  1911,  c.  399) 

An  act  relating  to  the  liability  of  employers  for  injuries  or 
death  sustained  by  their  employes,  providing  for  compen- 
sation for  the  accidental  injury  of  employes,  establishing 
an  industrial  accident  board,  making  an  appropriation 
therefor,  defining  its  powers  and  providing  for  a  review  of 
its  awards. 

[Approved  April  8,  1911] 

The  people  of  the  State  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

abrogation  of  defenses 

Section  1.  In  any  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  State  by  an  employ^  while 
engaged  in  the  line  of  his  duty  or  the  course  of  his  employ- 
ment as  such,  or  for  death  resulting  from  personal  injury  so 
sustained,  in  which  recovery  is  sought  upon  the  ground  of 


TEXTS   OF   COMPENSATION  ACTS  873 

California 

want  of  ordinary  or  reasonable  care  of  the  employer,  or  of 
any  officer,  agent  or  servant  of  the  employer,  the  fact  that 
such  employe  may  have  been  guilty  of  contributory  negli- 
gence shall  not  bar  a  recovery  therein  where  his  contributory 
negligence  was  slight  and  that  of  the  employer  was  gross,  in 
comparison,  but  the  damages  may  be  diminished  by  the 
jury  in  proportion  to  the  amount  of  negligence  attributable 
to  such  employe,  and  it  shall  be  conclusively  presumed  that 
such  employ^  was  not  guilty  of  contributory  negligence  in 
any  case  where  the  violation  of  any  statute  enacted  for  the 
safety  of  emploj'^es  contributed  to  such  employe's  injury;  and 
it  shall  not  be  a  defense: 

(1)  That  the  employ^  either  expressly  or  impliedly  as- 
sumed the  risk  of  the  hazard  complained  of. 

(2)  That  the  injury  or  death  was  caused  in  whole  or  in 
part  by.  the  want  of  ordinary  or  reasonable  care  of  a  fellow 
servant. 

Sec.  2.  No  contract,  rule  or  regulation,  shall  exempt  the 
employer  from  any  of  the  provisions  of  the  preceding  section 
of  this  act 

LIABILITY   FOR   COMPENSATION 

Sec.  3.  Liability  for  the  compensation  hereinafter  pro- 
vided for,  in  lieu  of  any  other  liability  whatsoever,  shall, 
without  regard  to  negligence,  exist  against  an  employer  for 
any  personal  injury  accidentally  sustained  by  his  employes, 
and  for  his  death  if  the  injury  shall  approximately  cause 
death,  in  those  cases  where  the  following  conditions  of  com- 
pensation concur: 

(1)  Where,  at  the  time  of  the  accident,  both  the  employer 
and  employ^  are  subject  to  the  provisions  of  this  act  accord- 
ing to  the  succeeding  sections  hereof. 

(2)  Where,  at  the  time  of  the  accident,  the  employe  is 
performing  service  growing  out  of  and  incidental  to  his  em- 
ployment and  is  acting  within  the  line  of  his  duty  or  course 
of  his  employment  as  such. 


874    Bradbury's  workmen's  compensation  law 

California 

(3)  Where  the  injury  is  approximately  caused  by  accident, 
either  with  or  without  neghgence,  and  is  not  so  caused  by  the 
willful  misconduct  of  the  employ^. 

And  where  such  conditions  of  compensation  exist  for  any 
personal  injury  or  death,  the  right  to  the  recovery  of  such 
compensation  pursuant  to  the  provisions  of  this  act,  and  acts 
amendatory  thereof,  shall  be  the  exclusive  remedy  against 
the  employer  for  such  injury  or  death,  except  that  when  the 
injury  was  caused  by  the  personal  gross  negligence  or  willful 
personal  misconduct  of  the  employer,  or  by  reason  of  his 
violation  of  any  statute  designed  for  the  protection  of  em- 
ployes from  bodily  injury,  the  employ^  niay,  at  his  option, 
either  claim  compensation  under  this  act,  or  maintain  an 
action  for  damages  therefor;  in  all  other  cases  the  liability  of 
the  employer  shall  be  the  same  as  if  this  and  the  succeeding 
sections  of  this  act  had  not  been  passed,  but  shall  be  subject 
to  the  provisions  of  the  preceding  sections  of  this  act. 

Sec.  4.  The  following  shall  constitute  employers  subject 
to  the  provisions  of  this  act  within  the  meaning  of  the  pre- 
ceding section : 

(1)  The  State,  and  each  county,  city  and  county,  city, 
town,  village  and  school  districts  and  all  public  corporations, 
every  person,  firm,  and  private  corporation  (including  any 
public  service  corporation)  who  has  any  person  in  service 
under  any  contract  of  hire,  express  or  implied,  oral  or  written, 
and  who,  at  or  prior  to  the  time  of  the  accident  to  the  em- 
ploye for  which  compensation  under  this  act  may  be  claimed, 
shall,  in  the  manner  provided  in  the  next  section,  have 
elected  to  become  subject  to  the  provisions  of  this  act,  and 
who  shall  not,  at  the  time  of  such  accident,  have  withdrawn 
such  election,  in  the  manner  provided  in  the  next  section. 

Sec.  5.  Such  election  on  the  part  of  the  employer  shall  be 
made  by  filing  with  the  industrial  accident  board,  herein- 
after provided  for  a  written  statement  to  the  effect  that  he 
accepts  the  provisions  of  this  act,  the  filing  of  which  state- 


TEXTS   OF   COMPENSATION  ACTS  875 

California 

ment  shall  operate,  within  the  meaning  of  section  three  of 
this  act,  to  subject  such  employer  to  the  provisions  of  this 
act  and  all  acts  amendatory  thereof  for  the  term  of  one  year 
from  the  date  of  the  filing  of  such  statement,  and  thereafter, 
without  further  act  on  his  part,  for  successive  terms  of  one 
year  each,  unless  such  employer  shall,  at  least  sixty  days 
prior  to  the  expiration  of  such  first  or  any  succeeding  year, 
file  in  the  office  of  said  board  a  notice  in  writing  to  the  effect 
that  he  withdraws  his  election  to  be  subject  to  the  provisions 
of  the  act. 

Sec.  6.  The  term  "employ^"  as  used  in  section  three  of 
this  act  shall  be  construed  to  mean: 

(1)  Every  person  in  the  service  of  the  State,  or  any 
county,  city  and  county,  city,  town,  village  or  school  dis- 
trict therein,  and  all  public  corporations,  under  any  appoint- 
ment or  contract  of  hire,  express  or  implied,  oral  or  written, 
except  any  official  of  the  State,  or  of  any  county,  city  and 
county,  city,  town,  village  or  school  district  therein  or  any 
public  corporation,  who  shall  have  been  elected  or  appointed 
for  a  regular  term  of  one  or  more  years,  or  to  complete  the 
unexpired  portion  of  any  such  regular  term. 

(2)  Every  person  in  the  service  of  another  under  any  con- 
tract of  hire,  express  or  impfied,  oral  or  written,  including 
aliens,  and  also  including  minors  who  are  legally  permitted 
to  work  under  the  laws  of  the  State  (who,  for  the  purposes 
of  the  next  section  of  this  act,  shall  be  considered  the  same 
and  shall  have  the  same  power  of  contracting  as  adult  em- 
ployes), but  not  including  any  person  whose  employment  is 
but  casual  and  not  in  the  usual  course  of  the  trade,  business, 
profession  or  occupation  of  his  employer. 

Sec.  7.  Any  employe  as  defined  in  subsection  (1)  of  the 
preceding  section  shall  be  subject  to  the  provisions  of  this 
act  and  of  any  act  amendatory  thereof.  Any  employ^  as 
defined  in  subsection  (2)  of  the  preceding  section  shall  be 
deemed  to  have  accepted  and  shall,  within  the  meaning  of 


876    Bradbury's  workmen*s  compensation  law 

California 

section  3  of  this  act  be  subject  to  the  provisions  of  this  act 
and  of  any  act  amendatory  thereof,  if,  at  the  time  of  the  acci- 
dent upon  which  habihty  is  claimed: 

(1)  The  employer  charged  with  such  liability  is  subject  to 
the  provisions  of  this  act,  whether  the  employ^  has  actual 
notice  thereof  or  not;  and 

(2)  At  the  time  of  entering  into  his  contract  of  hire,  ex- 
press or  impHed,  with  such  employer,  such  employe  shall  not 
have  given  to  his  employer  notice  in  writing  that  he  elects 
not  to  be  subject  to  the  provisions  of  this  act,  or,  in  the  event 
that  such  contract  of  hire  was  made  in  advance  of  such  em- 
ployer becoming  subject  to  the  provisions  of  the  act,  such 
employe  shall,  without  giving  such  notice,  remain  in  the 
service  of  such  employer  for  thirty  days  after  the  employer 
has  filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act. 

scale  of  compensation 

Sec.  8.  Where  liability  for  compensation  under  this  act 
exists  the  same  shall  be  as  provided  in  the  following  schedule : 

(1)  Such  medical  and  surgical  treatment,  medicines,  medi- 
cal and  surgical  supplies,  crutches  and  apparatus,  as  may  be 
reasonably  required  at  the  time  of  the  injury  and  thereafter 
during  the  disability,  but  not  exceeding  ninety  days,  to  cure 
and  relieve  from  the  effects  of  the  injury,  the  same  to  be  pro- 
vided by  the  employer,  and  in  case  of  his  neglect  or  refusal 
seasonably  to  do  so,  the  employer  to  be  liable  for  the  reason- 
able expense  incurred  by  or  on  behalf  of  the  employ^  in  pro- 
viding the  same;  provided,  however,  that  the  total  liability 
under  this  subdivision  shall  not  exceed  the  sum  of  SIOO.OO. 

(2)  If  the  accident  causes  disability,  an  indemnity  which 
shall  be  payable  as  wages  on  the  eighth  day  after  the  injured 
employe  leaves  work  as  the  result  of  the  injury,  and  weekly 
thereafter,  which  weekly  indemnity  shall  be  as  follows: 

(a)  If  the  accident  causes  total  disability,  sixty-five  per 


TEXTS   OF   COMPENSATION    ACTS  877 

California 

cent  of  the  average  weekly  earnings  during  the  period  of 
such  total  disability;  provided,  that  if  the  disability  is  such 
as  not  only  to  render  the  injured  employe  entirely  incapable 
of  work,  but  also  so  helpless  as  to  require  the  assistance  of  a 
nurse,  the  weekly  indemnity  during  the  period  of  such  as- 
sistance shall  be  increased  to  one  hundred  per  cent  of  the 
average  weekly  earnings. 

(h)  If  the  accident  causes  partial  disability,  sixty-five  per 
cent  of  the  weekly  loss  in  wages  during  the  period  of  such 
partial  disability, 

(c)  If  the  disability  caused  by  the  accident  is  at  times  total 
and  at  times  partial,  the  weekly  indemnity  during  the  periods 
of  each  such  total  or  partial  disability  shall  be  in  accordance 
with  said  subsections  (a)  and  (6),  respectively. 

(d)  Said  subsections  (a),  (6)  and  (c)  shall  be  subject  to  the 
following  hmitations: 

Aggregate  disability  indemnity  for  a  single  injury  shall 
not  exceed  three  times  the  average  annual  earnings  of  the 
employe. 

If  the  period  of  disability  does  not  last  more  than  one 
week  from  the  day  the  employe  leaves  work  as  the  result  of 
the  accident  no  indemnity  whatever  shall  be  recoverable. 

If  the  period  of  disability  lasts  more  than  one  week  from 
the  day  the  employe  leaves  work  as  the  result  of  the  acci- 
dent, no  indemnity  shall  be  recoverable  for  the  first  week  of 
the  period  of  such  disability. 

The  aggregate  disability  period  shall  not,  in  any  event 
extend  beyond  fifteen  years  from  the  date  of  the  accident. 

(3)  The  death  of  the  injured  employe  shall  not  affect  the 
obligation  of  the  employer  under  subsections  (1)  and  (2)  of 
this  section,  so  far  as  his  Uability  shall  have  accrued  and 
become  payable  at  the  time  of  the  death,  but  the  death  shall 
be  deemed  the  termination  of  disability,  and  the  employer 
shall  thereupon  be  liable  for  the  following  death  benefits  in 
lieu  of  any  further  disability  benefits,  provided  that  such 


878    Bradbury's  workmen's  compensation  law 

California 

death  was  approximately  caused  by  the  accident  causing 
such  disabihty: 

(a)  In  case  the  deceased  employ^  leaves  a  person  or  per- 
sons wholly  dependent  upon  him  for  support,  the  death 
benefit  shall  be  a  sum  sufficient  when  added  to  the  benefits 
which  shall,  at  the  time  of  death,  have  accrued  and  become 
payable  under  the  provisions  of  subsection  (2)  of  this  sec- 
tion to  make  the  total  compensation  for  the  injury  and  death 
(exclusive  of  the  benefit  provided  for  in  subsection  (1),  equal 
to  three  times  his  annual  average  earnings,  not  less  than 
$1,000  nor  more  than  $5,000,  the  same  to  be  payable,  un- 
less and  until  the  industrial  accident  board  shall  otherwise 
direct,  in  weekly  installments  corresponding  in  amount  to 
the  weekly  earnings  of  the  employ^. 

(6)  In  case  the  deceased  employ^  leaves  no  one  wholly 
dependent  on  him  for  support,  but  one  or  more  persons  par- 
tially dependent  therefor,  the  death  benefit  shall  be  such 
percentage  of  three  times  such  annual  earnings  of  the  em- 
ploye as  the  annual  amount  devoted  by  the  deceased  to 
the  support  of  the  person  or  persons  so  partially  dependent 
upon  him  for  support  bears  to  such  average  earnings,  the 
same  to  be  payable,  unless  and  until  the  industrial  accident 
board  shall  otherwise  direct,  in  weekly  installments,  cor- 
responding to  the  weekly  earnings  of  the  employes;  provided, 
that  the  total  compensation  for  the  injury  and  death  (ex- 
clusive of  the  benefit  provided  for  in  said  subsection  (1)  shall 
not  exceed  three  times  such  average  annual  earnings. 

(c)  In  the  event  that  the  accident  shall  have  approxi- 
mately caused  permanent  disability,  either  total  or  partial, 
and  the  employ^  shall  die  within  fifteen  years  after  the  date 
of  the  accident,  liability  for  the  death  benefits  provided  for 
in  said  subsections  (a)  and  (6)  respectively  shall  exist  only 
where  the  accident  was  the  approximate  cause  of  death 
within  said  period  of  fifteen  years, 

(d)  If  the  deceased  employ^  leaves  no  person  dependent 


TEXTS   OF   COMPENSATION   ACTS  879 

California 

upon  him  for  support,  and  the  accident  approximately 
causes  death,  the  death  benefit  shall  consist  of  the  reasonable 
expenses  of  his  burial  not  exceeding  $100. 

METHOD    OF   COMPUTATION 

Sec,  9.  (1)  The  weekly  earning  referred  to  in  section  (8) 
shall  be  one  fifty-second  of  the  average  annual  earnings  of 
the  employe;  average  annual  earnings  shall  not  be  taken  at 
less  than  $333.33,  nor  more  than  $1,666.66,  and  between 
said  Umits  shall  be  arrived  at  as  follows: 

(a)  If  the  injured  employe  has  worked  in  such  employ- 
ment, whether  for  the  same  employer  or  not,  during  sub- 
stantially the  whole  of  the  year  immediately  preceding  his 
injury,  his  average  annual  earnings  shall  consist  of  three 
hundred  times  the  average  daily  wage  or  salary  which  he 
has  earned  as  such  employ^  during  the  days  when  so  em- 
ployed. 

(6)  If  the  injured  employ^  has  not  so  worked  in  such 
employment  during  substantially  the  whole  of  such  immedi- 
ately preceding  year,  his  average  annual  earnings  shall  con- 
sist of  three  hundred  times  the  average  daily  wage  or  salary 
which  an  employ^  of  the  same  class  working  substantially 
the  whole  of  such  immediately  preceding  year  in  the  same 
or  a  similar  employment  in  the  same  or  a  neighboring  place 
shall  have  earned  during  the  days  when  so  employed. 

(c)  In  cases  where  the  foregoing  methods  of  arriving  at 
the  average  annual  earnings  of  the  injured  employ^  cannot 
reasonably  and  fairly  be  applied,  such  annual  earnings  shall 
be  taken  at  such  sum  as  having  regard  to  the  previous  earn- 
ings of  the  injured  employ^,  and  of  other  employes  of  the 
same  or  most  similar  class,  working  in  the  same  or  most 
similar  employment  in  the  same  or  neighboring  locahty,  shall 
reasonably  represent  the  average  earning  capacity  of  the 
injured  employ^  at  the  time  of  the  injury  in  the  employment 
in  which  he  was  working  at  such  time. 


880    Bradbury's  workmen's  compensation  law 

California 

(d)  The  fact  that  an  employ^  has  suffered  a  previous  dis- 
abihty,  or  received  compensation  therefor,  shall  not  preclude 
him  from  compensation  for  a  later  injury,  or  for  death  result- 
ing therefrom,  but  in  determining  compensation  for  the 
later  injury,  or  death  resulting  therefrom,  his  average  annual 
earnings  shall  be  such  sum  as  will  reasonably  represent  his 
annual  earning  capacity  at  the  time  of  the  later  injury,  and 
shall  be  arrived  at  according  to  the  previous  provisions  of 
this  section. 

(2)  The  weekly  loss  in  wages  referred  to  in  section  8,  shall 
consist  of  the  difference  between  the  average  weekly  earn- 
ings of  the  injured  employe,  computed  according  to  the 
provisions  of  this  section,  and  the  weekly  amount  which  the 
injured  employe,  in  the  exercise  of  reasonable  diligence,  will 
probably  be  able  to  earn,  the  same  to  be  fixed  as  of  the  time 
of  the  accident,  but  to  be  determined  in  view  of  the  nature 
and  extent  of  the  injury. 

(3)  The  following  shall  be  conclusively  presumed  to  be 
solely  and  wholly  dependent  for  support  upon  a  deceased 
employ^ : 

(a)  A  wife  upon  a  husband. 

(b)  A  husband  upon  a  wife  upon  whose  earnings  he  is 
partially  or  wholly  dependent  at  the  time  of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or 
over  said  age,  but  physically  or  mentally  incapacitated  from 
earning),  upon  the  parent  with  whom  he  or  they  are  living 
at  the  time  of  the  death  of  such  parent,  there  being  no  sur- 
viving dependent  parent.  In  case  there  is  more  than  one 
child  thus  dependent,  the  death  benefit  shall  be  divided 
equally  among  them.  In  all  other  cases  questions  of  entire 
or  partial  dependency  shall  be  determined  in  accordance 
with  the  fact,  as  the  fact  may  be  at  the  time  of  the  death  of 
the  employ^,  and  in  such  other  cases  if  there  is  more  than 
one  person  wholly  dependent,  the  death  benefit  shall  be  di- 
vided equally  among  them  and  persons  partially  dependent, 


TEXTS   OF   COMPENSATION   ACTS  881 

California 

if  any,  shall  receive  no  part  thereof,  and  if  there  is  more  than 
one  person  partially  dependent,  the  death  benefit  shall  be 
divided  among  them  according  to  the  relative  extent  of  their 
dependency. 

(4)  Questions  as  to  who  constitute  dependents  and  the 
extent  of  their  dependency  shaH  be  determined  as  of  the  date 
of  the  death  of  the  employ^,  and  their  right  to  any  death 
benefit  shall  become  fixed  as  of  such  time,  irrespective  of 
any  subsequent  change  in  conditions,  and  the  death  benefit 
shall  be  directly  recoverable  by  and  payable  to  the  dependent 
or  dependents  entitled  thereto  or  their  legal  guardians  or 
trustees. 

NOTICE   OF   INJURY 

Sec.  10.  No  claim  to  recover  compensation  under  this  act 
shall  be  maintained  unless  within  thirty  days  after  the  oc- 
currence of  the  accident  which  is  claimed  to  have  caused  the 
injury  or  death,  notice  in  writing,  stating  the  name  and  the 
address  of  the  person  injured,  the  time  and  the  place  where 
the  accident  occurred,  and  the  nature  of  the  injury,  and 
signed  by  the  person  injured  or  some  one  in  his  behalf,  or  in 
case  of  his  death,  by  a  dependent  or  some  one  in  his  behalf, 
shall  be  served  upon  the  employer  by  delivering  to  and  leav- 
ing with  him  a  copy  of  such  notice  or  by  mailing  to  him  by 
registered  mail  a  copy  thereof  in  a  sealed  and  posted  envelope 
addressed  to  him  at  his  last  known  place  of  business  or  resi- 
dence. Such  mailing  .shall  constitute  complete  service.  Pro- 
vided, however,  that  any  payment  of  compensation  under 
this  act,  in  whole  or  in  part,  made  by  the  employer  before  the 
expiration  of  said  thirty  days  shall  be  equivalent  to  the  notice 
herein  required,  and  provided  further,  that  the  failure  to  give 
any  such  notice,  or  any  defect  or  inaccuracy  therein,  shall 
not  be  a  bar  to  recovery  under  this  act  if  it  is  found  as  a  fact 
in  the  proceedings  for  collections  of  the  claim  that  there  was 
no  intention  to  mislead  the  employer,  and  that  he  was  not  in 

66 


882    Bradbury's  workmen's  compensation  law 

California 

fact  misled  thereby,  and  provided  further  that  if  no  such 
notice  is  given  and  no  payment  of  compensation  made, 
within  one  year  from  the  date  of  the  accident,  the  right  to 
compensation  therefor  shall  be  wholly  barred. 

examination  by  physician 

Sec.  11.  Wherever  in  case  of  injury  the  right  to  compensa- 
tion under  this  act  would  exist  in  favor  of  any  employ^,  he 
shall,  upon  the  written  request  of  his  employer,  submit  from 
time  to  time  to  examination  by  a  regular  practicing  physician, 
who  shall  be  provided  and  paid  for  by  the  employer,  and  shall 
likewise  submit  to  examination  from  time  to  time  by  any 
regular  physician  selected  by  said  Industrial  Accident  Board, 
or  any  member  or  examiner  thereof.  The  employe  shall  be 
entitled  to  have  a  physician  provided  and  paid  for  by  himself 
present  at  any  such  examination.  So  long  as  the  employe, 
after  such  written  request  of  the  employer,  shall  refuse  to 
submit  to  such  examination,  or  shall  in  any  way  obstruct  the 
same,  his  right  to  begin  or  maintain  any  proceeding  for  the 
collection  of  compensation  shall  be  suspended,  and  if  he  shall 
refuse  to  submit  to  such  examination  after  direction  by  the 
board,  or  any  member  or  examiner  thereof,  or  shall  in  any 
way  obstruct  the  same,  his  right  to  the  weekly  indemnity 
which  shall  accrue  and  become  payable  during  the  period  of 
such  refusal  or  obstruction,  shall  be  barred.  Any  physician 
who  shall  make  or  be  present  at  any  such  examination  may 
be  required  to  testify  as  to  the  results  thereof. 

INDUSTRIAL   ACCIDENT   BOARD 

Sec.  12.  Any  dispute  or  controversy  concerning  compen- 
sation under  this  act,  including  any  in  which  the  State  may 
be  a  party,  shall  be  submitted  to  a  board  consisting  of  three 
members,  which  shall  be  known  as  the  industrial  accident 
board.    Within  thirty  days  before  this  act  shall  take  effect, 


TEXTS   OF   COMPENSATION   ACTS  883 

California 

the  governor,  by  and  with  the  advice  and  consent  of  the 
senate,  shall  appoint  a  member  who  shall  serve  two  years, 
and  another  who  shall  serve  three  years,  and  another  who 
shall  serve  four  years.  Thereafter  such  three  members  shall 
be  appointed  and  confirmed  for  terms  of  four  years  each. 
Vacancies  shall  be  filled  in  the  same  manner  for  the  unex- 
pired term.  Each  member  of  the  board,  before  entering  upon 
the  duties  of  his  office,  shall  take  the  oath  prescribed  by  the 
constitution.  A  majority  of  the  board  shall  constitute  a 
quorum  for  the  exercise  of  any  of  the  powers  or  authority 
conferred  by  this  act,  and  an  award  by  a  majority  shall  be 
valid.  In  case  of  a  vacancy,  the  remaining  two  members  of 
the  board  shall  exercise  all  the  powers  and  authority  of  the 
board  until  such  vacancy  is  filled.  Each  member  of  the 
board  shall  receive  an  annual  salary  of  three  thousand  six 
hundred  dollars. 

Sec.  13.  The  board  shall  organize  by  choosing  one  of  its 
members  as  chairman.  Subject  to  the  provisions  of  this  act, 
it  may  adopt  its  own  rules  of  procedure  and  may  change  the 
same  from  time  to  time  in  its  discretion.  The  board,  when  it 
shall  deem  it  necessary  to  expedite  its  business,  may  from 
time  to  time  employ  one  or  more  expert  examiners  for  such 
length  of  time  as  may  be  required.  It  may  also  appoint  a 
secretary  and  such  clerical  help  as  it  may  deem  necessary. 
It  shall  fix  the  compensation  of  all  assistants  so  appointed. 

Sec.  14.  The  board  shall  keep  its  office  at  the  city  of  San 
Francisco,  and  shall  be  provided  by  the  secretary  of  state  with 
a  suitable  room  or  rooms,  necessary  ofiice  furniture,  sta- 
tioner}'',  and  other  supplies.  The  members  of  the  board  and 
its  assistants,  shall  be  entitled  to  receive  from  the  State  their 
actual  and  necessary  expenses  while  traveling  on  the  busi- 
ness of  the  board,  but  such  expenses  shall  be  sworn  to  by  the 
person  who  incurred  the  same,  and  be  approved  by  the  chair- 
man of  the  board,  before  payment  is  made.  All  salaries  and 
expenses  authorized  by  this  act  shall  be  audited  and  paid 


884    Bradbury's  workmen's  compensation  law 

California 

out  of  the  general  funds  of  the  State  the  same  as  other  gen- 
eral state  expenses  are  audited  and  paid. 

NOTICE    OF   HEARING 

Sec.  15.  Upon  the  filing  with  the  board  by  any  party  in 
interest  of  an  application  in  writing  stating  the  general 
nature  of  any  dispute  or  controversy  concerning  compensa- 
tion under  this  act,  it  shall  fix  a  time  for  the  hearing  thereof, 
which  shall  not  be  more  than  forty  days  after  the  filing  of 
such  application.  The  board  shall  cause  notice  of  such  hear- 
ing to  be  given  to  each  party  interested  by  service  of  such 
notice  on  him  personally  or  by  mailing  a  copy  thereof  to  him 
at  his  last  known  post  office  address  at  least  ten  days  before 
such  hearing.  Such  hearing  may  be  adjourned  from  time  to 
time  in  the  discretion  of  the  board,  and  hearings  shall  be 
held  at  such  places  as  the  board  shall  designate.  Either 
party  shall  have  the  right  to  be  present  at  any  hearing,  in 
person  or  by  attorney  or  any  other  agent,  and  to  present 
such  testimony  as  shall  be  pertinent  to  the  controversy  be- 
fore the  board,  but  the  board  may,  with  or  without  notice  to 
either  party,  cause  testimony  to  be  taken,  or  inspection  of 
the  premises  where  the  injury  occurred  to  be  had,  or  the  time 
books  and  pay  roll  of  the  employer  to  be  examined  by  any 
member  of  the  board  or  any  examiner  appointed  by  it,  and 
may  from  time  to  time,  direct  any  employe  claiming  com- 
pensation to  be  examined  by  a  regular  physician;  the  testi- 
mony so  taken  and  the  results  of  any  such  inspection  or 
examination,  to  be  reported  to  the  board  for  its  considera- 
tion upon  final  hearing.  The  board,  or  any  member  thereof, 
or  any  examiner  appointed  thereby  shall  have  power  and 
authority  to  issue  subpoenas  to  compel  the  attendance  of 
witnesses  or  parties,  and  the  production  of  books,  papers,  or 
records,  and  to  administer  oaths.  Obedience  to  such  sub- 
poenas shall  be  enforced  by  the  superior  court  of  any  county, 
or  city  and  county. 


TEXTS   OF   COMPENSATION   ACTS  885 

California 

Sec.  16.  After  final  hearing  by  said  board,  it  shall  make 
and  file  (1)  its  findings  upon  all  facts  involved  in  the  con- 
troversy, and  (2)  its  award,  which  shall  state  its  determina- 
tion as  to  the  rights  of  the  party. 

Sec.  17.  Either  party  may  present  a  certified  copy  of  the 
award  to  the  superior  court  for  any  county  or  city  and  county, 
whereupon  said  court  shall,  without  notice,  render  a  judg- 
ment in  accordance  therewith,  which  judgment,  until  and 
unless  set  aside  as  hereinafter  provided,  shall  have  the  same 
effect  as  though  duly  rendered  in  an  action  duly  tried  and 
determined  by  said  court,  and  shall,  with  the  like  effect,  be 
entered  and  docketed. 

REVIEW   BY   COURT 

Sec.  18.  The  findings  of  fact  made  by  the  board  acting 
within  its  powers,  shall,  in  the  absence  of  fraud,  be  con- 
clusive, and  the  award,  whether  judgment  has  been  ren- 
dered thereon  or  not,  shall  be  subject  to  review  only  in  the 
manner  and  upon  the  grounds  following:  within  thirty  days 
from  the  date  of  the  award,  any  party  aggrieved  thereby  may 
file  with  the  board  an  application  in  writing  for  a  review  of 
such  award,  stating  generally  the  grounds  upon  which  such 
review  is  sought;  within  thirty  days  thereafter  the  board 
shall  cause  all  documents  and  papers  on  file  in  the  matter, 
and  a  transcript  of  all  testimony  which  may  have  been  taken 
therein,  to  be  transmitted  with  their  findings  and  award  to 
the  clerk  of  the  superior  court  of  that  county  or  city  and 
county  wherein  the  accident  occurred;  such  application  for 
a  review  may  thereupon  be  brought  on  for  hearing  before 
said  court  upon  such  record  by  either  party  on  ten  days' 
notice  to  the  other,  subject,  however,  to  the  provisions  of 
law  for  a  change  of  the  place  of  trial  or  the  calling  of  another 
judge.  Upon  such  hearing  the  court  may  confirm  or  set 
aside  such  award,  and  any  judgment  which  may  theretofore 
have  been  rendered  thereon,  but  the  same  shall  be  set  aside 
only  upon  the  following  grounds: 


886    Bradbury's  workmen's  compensation  law 

California 

(1)  That  the  board  acted  without  or  in  excess  of  its 
powers. 

(2)  That  the  award  was  procured  by  fraud. 

(3)  That  the  findings  of  fact  by  the  board  do  not  support 
the  award. 

REMANDING    OF   RECORD 

Sec.  19.  Upon  the  setting  aside  of  any  award  the  court 
may  recommit  the  controversy  and  remand  the  record  in  the 
case  to  the  board,  for  further  hearing  or  proceedings,  or  it 
may  enter  the  proper  judgment  upon  the  findings,  as  the 
nature  of  the  case  shall  demand.  An  abstract  of  the  judg- 
ment entered  by  the  trial  court  upon  the  review  of  any  award 
shall  be  made  by  the  clerk  thereof  upon  the  docket  entry  of 
any  judgment  which  may  theretofore  have  been  rendered 
upon  such  award,  and  transcripts  of  such  abstract  may  there- 
upon be  obtained  for  like  entry  upon  the  dockets  of  the 
courts  of  other  counties,  or  city  and  county. 

Sec.  20.  Any  party  aggrieved  by  a  judgment  entered  upon 
the  review  of  any  award,  may  appeal  therefrom  within  the 
time  and  in  the  manner  provided  for  an  appeal  from  the 
orders  of  the  superior  court;  but  all  such  appeals  shall  be 
placed  on  the  calendar  of  the  supreme  court  and  brought  to 
a  hearing  in  the  same  manner  as  criminal  causes  on  such 
calendar. 

Sec.  21.  No  fees  shall  be  charged  by  the  clerk  of  any  court 
for  the  performance  of  any  official  service  required  by  this 
act,  except  for  the  docketing  of  judgments  and  for  certified 
copies  or  transcripts  thereof.  In  proceedings  to  review  an 
award,  costs  as  between  the  parties  shall  be  allowed  or  not  in 
the  discretion  of  the  court. 

Sec.  22.  No  claim  for  compensation  under  this  act  shall 
be  assignable  before  payment,  but  this  provision  shall  not 
affect  the  survival  thereof;  nor  shall  any  claim  for  compensa- 
tion, or  compensation  awarded,  adjudged  or  paid,  be  sub- 
ject to  be  taken  for  the  debts  of  the  party  entitled  thereto. 


TEXTS   OF   COMPENSATION   ACTS  887 

California 

Sec.  23.  A  claim  for  compensation  for  the  injury  or  death 
of  any  employe,  or  any  award  or  judgment  entered  thereon, 
shall  be  entitled  to  a  preference  over  the  other  debts  of  the 
employer  if  and  to  the  same  extent  as  the  wages  of  such 
employe  shall  be  co  preferred;  but  this  section  shall  not  im- 
pair the  lien  of  any  judgment  entered  upon  any  award. 

INSURANCE   PROVISIONS 

Sec.  24.  Nothing  in  this  act  shall  affect  the  organization 
of  any  mutual  or  other  insurance  company,  or  any  existing 
contract  for  insurance  of  employers'  liability,  nor  the  right  of 
the  employer  to  insure  in  mutual  or  other  companies,  in 
whole  or  in  part,  against  such  Kability,  or  against  the  lia- 
bihty  for  the  compensation  provided  for  by  this  act,  or  to 
provide  by  mutual  or  other  insurance,  or  by  arrangement 
with  his  employes,  or  otherwise,  for  the  payment  to  such 
employes,  their  families,  dependents,  or  representatives,  of 
sick,  accident  or  death  benefits,  in  addition  to  the  com- 
pensation provided  for  by  this  act.  But  liability  for  com- 
pensation under  this  act  shall  not  be  reduced  or  affected  by 
any  insurance,  contributions,  or  other  benefit  whatsoever 
due  to  or  received  by  the  person  entitled  to  such  compensa- 
tion, and  the  person  so  entitled  shall,  irrespective  of  any 
insurance  or  other  contract,  have  the  right  to  recover  the 
same  directly  from  the  employer,  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name,  in  the  manner  pro- 
videc^  in  this  act,  the  liability  of  any  insurance  company, 
which  may,  in  whole  or  in  part  have  insured  the  liability  for 
such  compensation;  provided,  however,  that  payment  in 
whole  or  in  part  of  such  compensation  by  either  the  employer 
or  the  insurance  company,  shall,  to  the  extent  thereof,  be  a 
bar  to  recovery  against  the  other  of  the  amount  so  paid,  and 
provided  further,that  as  between  the  employer  and  the  in- 
surance company,  payment  by  either  directly  to  the  employ^, 
or  to  the  person  entitled  to  compensation,  shall  be  subject 
to  the  conditions  of  the  insurance  contract  between  them. 


888    Bradbury's  workmen's  compensation  law 

California 

Sec.  25.  Every  contract  for  the  insurance  of  the  compen- 
sation herein  provided  for,  or  against  liabiUty  therefor,  shall 
be  deemed  to  be  made  subject  to  the  provisions  of  this  act, 
and  provisions  thereof  inconsistent  with  this  act  shall  be 
void.  No  company  shall  enter  into  any  such  contract  of 
insurance  unless  such  company  shall  have  been  approved  by 
the  commissioner  of  insurance,  as  provided  by  law. 

Sec.  26.  The  making  of  a  lawful  claim  against  an  em- 
ployer for  compensation  under  this  act  for  the  injury  or 
death  of  his  employ^  shall  operate  as  an  assignment  of  any 
assignable  cause  of  action  in  tort  which  the  employ^  or  his 
personal  representative  may  have  against  any  other  party 
for  such  injury  or  death,  and  such  employer  may  enforce  in 
his  own  name  the  liability  of  such  other  party. 

POSTING   OF  NOTICES 

Sec.  27.  The  board  shall  cause  to  be  printed  and  furnished 
free  of  charge  to  any  employer  or  employ^  such  blank  forms 
as  it  shall  deem  requisite  to  facilitate  or  promote  the  efficient 
administration  of  this  act;  it  shall  provide  a  proper  record 
book  in  which  shall  be  entered  and  indexed  the  name  of  every 
employer  who  shall  file  a  statement  of  election  under  this  act, 
and  the  date  of  the  filing  thereof,  and  a  separate  book  in 
which  shall  be  entered  and  indexed  the  name  of  every  em- 
ployer who  shall  file  his  withdrawal  of  such  election,  and  the 
date  of  the  fifing  thereof;  and  a  book  in  which  shall  be  re- 
corded all  awards  made  by  the  board;  and  such  other  books 
or  records  as  it  shall  deem  required  by  the  proper  and  efficient 
administration  of  this  act;  all  such  records  to  be  kept  in  the 
office  of  the  board.  Upon  the  filing  of  a  statement  of  elec- 
tion by  an  employer  to  become  subject  to  the  provisions  of 
this  act,  the  board  shall  forthwith  cause  notice  of  the  fact  to 
be  given  to  his  employes,  by  posting  and  keeping  continu- 
ously posted  in  a  pubfic  and  conspicuous  place  such  notice 
thereof  in  the  office,  shop,  or  place  of  business  of  the  em- 
ployer, or  by  publishing,  or  in  such  other  manner  as  the  board 


TEXTS   OF   COMPENSATION   ACTS  889 

California 

shall  deem  most  effective,  and  the  board  shall  cause  notice 
to  be  given  in  like  manner  of  the  filing  of  any  withdrawal  of 
such  election ;  but  notwithstanding  the  failure  to  give,  or  the 
insufficiency  of,  any  such  notice,  knowledge  of  all  filed  state- 
ments of  election  and  withdrawals  of  election,  and  of  the 
time  of  the  filing  of  the  same,  shall  conclusively  be  imputed 
to  all  employes. 

Sec.  28.  Nothing  in  this  act  contained  shall  be  construed 
as  impairing  the  right  of  parties  interested,  after  the  injury 
or  death  of  an  employe,  to  compromise  and  settle  upon  such 
terms  as  they  may  agree  upon,  any  liability  which  may  be 
claimed  to  exist  under  this  act  on  account  of  such  injury  or 
death,  nor  as  conferring  upon  the  dependents  of  any  injured 
employ^  any  interest  which  he  may  not  divert  by  such  settle- 
ment or  for  which  he  or  his  estate  shall,  in  the  event  of  such 
settlement  by  him,  be  accountable  to  such  dependents  or 
any  of  them. 

Sec.  29.  The  sum  of  fifty  thousand  dollars  is  hereby  ap- 
propriated out  of  any  moneys  in  the  state  treasury,  not 
otherwise  appropriated,  to  be  used  by  the  industrial  accident 
board  in  carrying  out  the  purposes  of  this  act,  and  the  con- 
troller is  hereby  directed  to  draw  his  warrant  on  the  general 
fund  from  time  to  time  in  favor  of  said  industrial  accident 
board  for  the  amounts  expended  under  its  direction,  and  the 
treasurer  is  hereby  authorized  and  directed  to  pay  the  same. 

Sec.  30.  All  acts  or  parts  of  acts  inconsistent  with  this 
act  are  hereby  repealed. 

'Sec.  31.  This  act  shall  take  effect  and  be  in  force  on  and 
after  the  first  day  of  September,  a.  d.  1911. 

(L.  1912,  c.  39) 
An  act  imposing  additional  duties  and  conferring  additional 
powers  upon  the  industrial  accident  board,  requiring  cer- 
tain statistical  information,  fixing  a  penalty  for  neglect  or 
refusal  to  give  such  information  to  said  board  on  request, 
requiring  said  board  to  report  to  the  governor  and  au- 


890    Bradbury's  workmen's  compensation  law 

California 

thorizing  it  to  give  publicity  to  the  results  of  its  researches 
and  investigations  and  empowering  said  board  to  expend 
in  carrying  out  the  requirements  of  this  act  a  sum  not  to 
exceed  fifteen  thousand  dollars  out  of  the  funds  heretofore 
appropriated  for  carrying  out  the  purposes  of  an  act 
entitled  "An  act  relating  to  the  liability  of  employers  for 
injuries  or  death  sustained  by  their  employes,  providing 
for  compensation  for  the  accidental  injury  of  employes, 
establishing  an  industrial  accident  board,  making  an  ap- 
propriation therefor,  defining  its  powers  and  providing  for 
a  review  of  its  awards,  approved  April  8,  1911." 


[Approved  January  2,  19121 

The  people  of  the  State  of  California  do  enact  as  follows: 
Section  1.  It  shall  be  the  duty  of  the  industrial  accident 
board  to  collect  and  compile  statistics  in  regard  to  industrial 
accidents  happening  in  this  State  resulting  in  personal  in- 
jury and  the  cost  and  probable  causes  thereof,  to  investigate 
methods  and  devices  for  the  prevention  of  such  accidents, 
to  investigate  the  comparative  merits  and  relative  cost  of 
the  various  forms  of  insurance  against  liability  and  compensa- 
tion for  personal  injuries  resulting  from  industrial  accidents. 
Sec.  2.  It  shall  be  the  duty  of  every  employer  of  labor 
and  of  persons,  firms,  associations  or  corporations  insuring 
against  liability  of  employers  for  damages  or  compensation 
for  personal  injuries  to  employes  by  industrial  accidents  to 
furnish  to  the  industrial  accident  board,  upon  the  written 
request  of  a  member  thereof  or  an  examiner  appointed 
thereby,  any  and  all  information  in  his  or  its  possession  or 
under  his  or  its  control,  pertinent  to  any  of  the  matters  re- 
ferred to  in  the  preceding  section  of  this  act.  It  shall  be 
unlawful  for  the  said  board,  or  any  member  thereof,  or  any 
examiner  appointed  thereby,  to  divulge  any  information 
obtained  from  any  employer  of  labor,  or  from  any  person, 


TEXTS   OF   COMPENSATION   ACTS  891 

California 

firm,  association  or  corporation  insuring  against  liability  or 
compensation  for  industrial  accidents,  without  the  written 
consent  of  such  employer,  and  of  such  person,  firm,  associa- 
tion or  corporation;  and  any  member  of  the  said  board,  or 
any  examiner  appointed  thereby  who  violates  the  provisions 
of  this  section  of  this  act,  shall  be  guilty  of  a  misdemeanor, 
and  for  each  and  every  such  violation  shall  be,  upon  convic- 
tion thereof,  punishable  by  a  fine  of  not  less  than  ten  dollars 
($10)  or  more  than  one  hundred  dollars  ($100)  or  by  im- 
prisonment for  not  more  than  thirty  (30)  days,  or  by  both 
such  fine  and  imprisonment;  and  any  information  so  ob- 
tained shall  not  be  used  against  any  such  employer,  person, 
firm,  association  or  corporation,  in  any  action  brought  against 
such  employer,  person,  firm,  association  or  corporation 
without  the  written  consent  of  such  employer,  person,  firm, 
association  or  corporation;  provided,  however,  that  this  sec- 
tion shall  not  prevent  the  industrial  accident  board  from 
making  and  publishing  the  results  of  its  investigations  and 
researches  as  provided  in  sections  5  and  6  of  this  act. 

Sec.  3.  Any  member  of  the  said  board  or  examiner  ap- 
pointed thereby  may,  during  reasonable  business  hours, 
enter  any  place  of  employment  for  the  purpose  of  collecting 
facts  and  statistics  and  examining  the  provisions  made  for 
the  safety  and  welfare  of  the  employes  therein. 

Sec.  4.  It  shall  be  unlawful  for  any  person,  firm,  corpora- 
tion, agent  or  officer  of  a  firm  or  corporation  to  fail,  neglect 
or  refuse  to  comply  with  any  of  the  foregoing  provisions  of 
this  act.  Any  person,  firm,  corporation,  agent  or  officer  of  a 
firm  or  corporation  that  knowingly  violates  or  omits  to 
comply  with  any  of  the  provisions  of  this  act,  shall  be  guilty 
of  a  misdemeanor  for  each  and  every  offense  and  shall  be, 
upon  conviction  thereof,  punishable  by  a  fine  of  not  more 
than  ten  dollars. 

Sec.  5.  The  industrial  accident  board  shall  report  the  re- 
sults of  its  investigations  covering  the  calendar  year  of  1912 


892    Bradbury's  workmen's  compensation  law 

California 

to  the  governor  of  the  State  not  later  than  February  1, 
1913. 

Sec.  6.  The  industrial  accident  board  is  authorized  and 
empowered  to  make  public  and  publish  at  such  times  and  in 
such  manner  as  it  deems  best,  the  result  of  its  investigations 
and  researches  together  with  all  such  other  information  in 
relation  to  the  liability  of  employers  for  damages  or  com- 
pensation for  personal  injuries  to  their  employes  as  it  may 
deem  essential  to  fully  acquaint  the  people  of  the  State  with 
the  present  law  and  its  purpose  and  operation. 

Sec.  7.  The  industrial  accident  board  is  hereby  authorized 
to  draw  upon  and  expend  for  the  purposes  set  forth  in  this 
act  a  sum  not  in  excess  of  fifteen  thousand  dollars  the  same 
to  be  paid  out  of  the  sum  of  fifty  thousand  dollars  appro- 
priated for  the  use  of  said  board  under  section  29  of  an  act 
entitled  "An  act  relating  to  the  liability  of  employers  for 
injuries  or  death  sustained  by  their  employes,  establishing 
an  industrial  accident  board,  making  appropriation  therefor, 
defining  its  powers  and  providing  for  a  review  of  its  awards, 
approved  April  8,  1911,"  and  the  controller  is  hereby  di- 
rected to  draw  his  warrants  in  favor  of  said  board  for  sums 
so  expended  when  duly  audited  and  approved  by  the  state 
board  of  control,  and  the  treasurer  is  hereby  authorized  and 
directed  to  pay  the  same. 

(L.  1912,  c.  53) 

An  act  to  provide  for  the  keeping  by  employers  of  a  record  of 
injuries  suffered  by  their  employes;  the  reporting  of  such 
injuries  to  the  industrial  accident  board  by  employers  and 
attending  physicians;  the  keeping  by  employers  and  insur- 
ance companies  of  records  of  claims  for  injuries  suffered 
by  employes  and  of  compromises  and  settlements  made 
therefor  and  requiring  the  reporting  thereof  to  said  board; 
and  fixing  a  penalty  for  refusal  or  neglect  to  keep  such 
records  or  make  such  reports. 


TEXTS   OF   COMPENSATION   ACTS  893 

California 

[Approved  January  10,  1912] 

The  people  of  the  State  of  CaHfornia  do  enact  as  follows: 
Section  1.  Every  employer  of  labor  in  this  State  shall 
keep  a  full,  true  and  correct  record  of  every  personal  injury 
suffered  by  his  or  its  employes,  arising  out  of  or  in  the  course 
of  the  employment,  and  resulting  in  death,  or  in  disability 
extending  over  a  period  of  a  week  or  more.  Within  fifteen 
days  after  the  happening  of  any  such  personal  injury,  a 
written  report  thereof  shall  be  mailed  by  the  employer  to  the 
industrial  accident  board  informally,  or  on  blanks  to  be 
provided  by  said  board  for  this  purpose.  The  said  report 
shall  contain  the  name  of  the  employer,  location  of  place 
of  cmplojTiient,  nature  of  employment,  name,  address,  age, 
nationality,  sex  and  occupation  of  the  injured  person,  length 
of  time  the  injured  person  had  worked  at  the  particular  em- 
ployment previous  to  injury,  date  and  hour  of  the  day  or 
night  of  the  accident,  the  hour  at  which  the  injured  employ^ 
began  work  on  the  date  of  the  accident,  nature  of  the  injury, 
cause  of  the  injury  and  rate  of  wages  of  the  injured  employ^. 
Sec.  2.  Upon  the  termination  of  the  disability  of  the  in- 
jured employe  or  at  the  expiration  of  sixty  days  from  the 
date  of  the  accident^  if  the  disability  should  extend  beyond 
such  period,  the  employer  shall  mail  to  the  industrial  acci- 
dent board  a  supplemental  report  in  relation  to  such  dis- 
ability, informally  or  on  blanks  to  be  provided  by  said  board 
for  this  purpose.  Such  report  must  contain  complete  state- 
ments as  to  any  claim  made  by  the  injured  employe  for 
indemnification  for  the  injury  sustained,  payment  made  to 
him  or  in  his  behalf  for  medical,  surgical  or  other  care,  claim 
for  compensation  or  damages  made  for  such  injuries  and  any 
compromise  or  settlement  of  claim  for  compensation  or  dam- 
ages entered  into  between  the  employer  and  such  injured 
employe,  his  heirs,  dependents  or  legal  representative.  In 
the  event  that  any  payment  shall  be  made  to  such  injured 
employ^,  or  his  dependents  at  any  time  thereafter,  in  com- 


894    Bradbury's  workmen's  compensation  law 

California 

promise  or  settlement  of  a  claim  for  compensation  or  dam- 
ages, the  amount  of  such  payment  shall  be  forthwith  re- 
ported by  the  employer  to  the  industrial  accident  board. 

Sec.  3.  Every  physician  who  attends  any  such  injured 
employ^  shall  keep  a  record  of  this  case.  Within  ten  days 
from  the  date  of  his  first  attendance  upon  the  injured  em- 
ploye, he  shall  mail  to  the  industrial  accident  board  a  re- 
port, informally  or  on  blanks  to  be  provided  by  the  said 
board  for  this  purpose.  The  said  report  shall  contain  the 
name  and  address  of  the  employer,  name,  address,  sex  and 
age  of  the  injured  employe,  date  of  accident,  description  of 
the  injury,  probable  nature  and  extent  of  disability.  Upon 
the  termination  of  the  disabiUty  of  the  injured  employ^  or 
the  termination  of  said  physician's  attendance  upon  his 
case,  he  shall  forthwith  mail  to  the  industrial  accident  board 
a  supplemental  report  in  relation  to  such  case  describing  the 
physical  condition  of  the  injured  employe,  his  disability, 
convalescence  or  discharge  from  the  doctor's  care. 

Sec.  4.  Every  person,  firm,  association  or  corporation  in- 
suring against  the  liability  of  employers  for  damages  or 
compensation  for  personal  injury  to  employes  or  indem- 
nifying any  employer  for,  or  on  account  of  any  such  hability 
shall  keep  a  record  thereof,  and  shall  within  the  first  five  days 
of  each  and  every  month,  report  in  writing  to  the  industrial 
accident  board,  informally  or  on  blanks  to  be  provided  by 
said  board  for  this  purpose,  every  such  injury  to  employes 
reported  to  it,  every  claim  for  damages  or  compensation  for 
such  injury  filed  with  such  person,  firm,  association  or  cor- 
poration and  any  settlement  or  compromise  of  any  such 
claim  for  damages  or  compensation  whether  made  with  such 
injured  employ^,  his  heirs,  dependents  or  legal  representa- 
tive. 

Sec.  5.  Every  employer,  physician  or  insurance  company, 
firm  or  association,  shall  furnish  to  the  industrial  accident 
board  all  further  information  required  by  it  in  order  to  con- 


TEXTS   OF   COMPENSATION   ACTS  895 

Illinois 

stitute  a  substantially  complete  and  accurate  history  of 
each  injury  and  the  damages  or  compensation  paid  therefor. 

Sec.  6.  The  record  required  to  be  kept  in  pursuance  of  the 
provisions  of  this  act  shall  at  all  times  be  open  to  inspection 
of  the  industrial  accident  board  or  any  member  thereof, 
or  any  examiner  appointed  thereby.  Any  statement  con- 
tained in  such  report  shall  not  be  admissible  as  evidence  in 
any  action  arising  out  of  the  death  or  injury  of  any  employe 
by  reason  of  the  accident  reported. 

Sec.  7.  It  shall  be  unlawful  for  any  person,  firm,  corpora- 
tion, agent  or  officer  of  a  firm  or  corporation  to  fail,  neglect 
or  refuse  to  comply  with  any  of  the  provisions  of  this  act. 
Any  person,  firm,  corporation,  agent  or  officer  of  a  firm  or 
corporation  that  violates  or  omits  to  comply  with  any  of  the 
provisions  of  this  act,  shall  be  guilty  of  a  misdemeanor  for 
each  and  every  offense  and  shall  be,  upon  conviction  thereof, 
punishable  by  fine  of  not  less  than  ten  dollars  or  more  than 
one  hundred  dollars  or  by  imprisonment  for  not  more  than 
thirty  days,  or  by  both  such  fine  and  imprisonment. 

Sec.  8.  Nothing  in  this  act  shall  apply  to  employers  of 
labor  engaged  in  farming,  dairying,  agricultural  or  horticul- 
tural pursuits,  in  poultry  raising  or  domestic  service. 

ILLINOIS 

(L.  1911,  c.  000) 

An  act  to  promote  the  general  welfare  of  the  people  of  this 
State,  by  providing  compensation  for  accidental  injuries 
or  death  suffered  in  the  course  of  employment. 
Be  it  enacted  by  the  people  of  the  State  of  Illinois,  repre- 
sented in  the  General  Assembly: 

Section  1.  That  any  employer  covered  by  the  provisions 
of  this  act  in  this  State  may  elect  to  provide  and  pay  com- 
pensation for  injuries  sustained  by  any  employe  arising  out 
of  and  in  the  course  of  the  emplojTnent  according  to  the 
provisions  of  this  act,  and  thereby  relieve  himself  from  lia- 


896    Bradbury's  workmen's  compensation  law 

Illinois 

bility  for  the  recovery  of  damages,  except  as  herein  provided. 
If,  however,  any  such  employer  shall  elect  not  to  provide 
and  pay  the  compensation  to  any  employe  who  has  elected 
to  accept  the  provisions  of  this  act,  according  to  the  provi- 
sions of  this  act  he  shall  not  escape  liability  for  injuries  sus- 
tained by  such  employe  arising  out  of  and  in  the  course  of 
his  employment  because 

(1)  The  employe  assumed  the  risks  of  the  employer's  busi- 
ness. 

(2)  The  injury  or  death  was  caused  in  whole  or  in  part  by 
the  negligence  of  a  fellow  servant. 

(3)  The  injury  or  death  was  proximately  caused  by  the 
contributory  negligence  of  the  employ^,  but  such  contribu- 
tory negligence  shall  be  considered  by  the  jury  in  reducing 
the  amount  of  damages. 

(a)  Every  such  employer  is  presumed  to  have  elected  to 
provide  and  pay  the  compensation  according  to  the  provi- 
sions of  this  act,  unless  and  until  notice  in  writing  of  his 
election  to  the  contrary  is  filed  with  the  State  Bureau  of 
Labor  Statistics. 

(6)  Every  employer  within  the  provisions  of  this  act  fail- 
ing to  file  such  notice  shall  be  bound  hereby  as  to  all  his 
employes  who  shall  elect  to  come  within  the  provisions  of  this 
act  until  January  1st  of  the  next  succeeding  year  and  for 
terms  of  each  year  thereafter:  Provided,  any  such  employer 
may  elect  to  discontinue  the  payments  of  compensation 
herein  provided  only  at  the  expiration  of  any  such  calendar 
year,  by  filing  notice  of  his  intention  to  discontinue  such 
payments,  with  the  State  Bureau  of  Labor  Statistics,  at  least 
sixty  days  prior  to  the  expiration  of  any  such  calendar  year, 
and  by  posting  such  notice  in  the  plant,  shop,  office  or  place 
of  work,  or  by  personal  service,  in  written  or  printed  form, 
upon  such  employe,  at  least  sixty  days  prior  to  the  expiration 
of  any  such  calendar  year. 

(c)  In  the  event  any  employer  elects  to  provide  and  pay 


TEXTS   OF   COMPENSATION    ACTS  897 

Illinois 

compensation  provided  in  this  act,  then  every  employ^  of 
such  employer,  as  a  part  of  his  contract  of  hiring  or  who  may 
be  employed  at  the  time  of  the  taking  effect  of  this  act  and 
the  acceptance  of  its  provisions  by  the  employer,  shall  be 
deemed  to  have  accepted  all  the  provisions  of  this  act  and 
shall  be  bound  thereby  unless  within  thirty  days  after  such 
hiring  and  after  the  taking  effect  of  this  act,  he  shall  file  a 
notice  to  the  contrary  with  the  Secretary  of  the  State  Bureau 
of  Labor  Statistics,  whose  duty  it  shall  be  to  immediately 
notify  the  employer,  and  if  so  notified,  the  employer  shall  not 
be  deprived  of  any  of  his  common-law  or  statutory  defenses, 
and  until  such  notice  to  the  contrary  is  given  to  the  em- 
ployer, the  measure  of  liability  of  the  employer  for  any  in- 
jury shall  be  determined  according  to  the  compensation 
provisions  of  this  act:  Provided,  however,  that  before  any 
such  employe  shall  be  bound  by  the  provisions  of  this  act, 
his  emploj^er  shall  either  furnish  to  such  employe  personally 
at  the  time  of  his  hiring,  or  post  in  a  conspicuous  place  at  the 
plant  or  in  the  room  or  place  where  such  employed  is  to  be 
employed,  a  legible  statement  of  the  compensation  provisions 
of  this  act. 

Sec.  2.  The  provisions  of  this  act  shall  apply  to  every 
employer  in  the  State  engaged  in  the  building,  maintaining 
or  demolishing  of  any  structure;  in  any  construction  or 
electrical  work;  in  the  business  of  carriage  by  land  or  water 
and  loading  and  unloading  in  connection  therewith  (except 
as  to  carriers  who  shall  be  construed  to  be  excluded  here- 
from by  the  laws  of  the  United  States  relating  to  liability  to 
their  employes  for  personal  injuries  while  engaged  in  inter- 
state commerce  where  such  laws  are  held  to  be  exclusive  of 
all  state  regulations  providing  compensation  for  accidental 
injuries  or  death  suffered  in  the  course  of  employment);  in 
operating  general  or  terminal  storehouses;  in  mining,  surface 
mining,  or  quarrying;  in  any  enterprise,  or  branch  thereof, 
in  which  explosive  materials  are  manufactured,  handled  or 

57 


898    Bradbury's  workmen's  compensation  law 

Illinois 

used  in  dangerous  quantities;  in  any  enterprise  wherein 
molten  metal  or  injurious  gases  or  vapors  or  inflammable 
fluids  are  manufactured,  used,  generated,  stored  or  conveyed 
in  dangerous  quantities;  and  in  any  enterprise  in  which 
statutory  regulations  are  now  or  shall  hereafter  be  imposed 
for  the  guarding,  using  or  the  placing  of  machinery  or  ap- 
pliances, or  for  the  protection  and  safeguarding  of  the  em- 
ployes therein,  each  of  which  employments  is  hereby  deter- 
mined to  be  especially  dangerous,  in  which  from  the  nature, 
conditions  and  means  of  prosecution  of  the  work  therein, 
extraordinary  risks  to  hfe  and  limb  of  the  employe  engaged 
therein  are  inherent,  necessary  or  substantially  unavoidable, 
and  as  to  each  of  which  employments  it  is  deemed  necessary 
to  establish  a  new  system  of  compensation  for  accidents  to 
the  employes  therein. 

Sec.  3.  No  common  law  or  statutory  right  to  recover  dam- 
ages for  injury  or  death  sustained  by  any  employe  while  en- 
gaged in  the  line  of  his  duty  as  such  employe  other  than  the 
compensation  herein  provided  shall  be  available  to  any  em- 
ploye who  has  accepted  the  provisions  of  this  act  or  to  any- 
one wholly  or  partially  dependent  upon  him  or  legally  re- 
sponsible for  his  estate:  provided,  that  when  the  injury  to  the 
employe  was  caused  by  the  intentional  omission  of  the 
employer,  to  comply  with  statutory  safety  regulations, 
nothing  in  this  act  shall  affect  the  civil  liability  of  the  em- 
ployer. If  the  employer  is  a  partnership,  such  omission  must 
be  that  of  one  of  the  partners  thereof,  and  if  a  corporation, 
that  of  any  elective  officer  thereof. 

Sec.  4.  The  amount  of  compensation  which  the  employer 
who  accepts  the  provisions  of  this  act  shall  pay  for  injury  to 
the  employ^  which  results  in  death,  shall  be: 

(a)  If  the  employe  leaves  any  widow,  child  or  children,  or 
parent  or  other  lineal  heirs  to  whose  support  he  had  con- 
tributed within  five  years  previous  to  the  time  of  his  death, 
a  sum  equal  to  four  times  the  average  annual  earnings  of  the 


TEXTS   OF   COMPENSATION   ACTS  899 

Illinois 

employe,  but  not  less  in  any  event  than  one  thousand  five 
hundred  dollars,  and  not  more  in  any  event  than  three  thou- 
sand five  hundred  dollars.  Any  weekly  payments,  other 
than  necessary  medical  or  surgical  fees,  shall  be  deducted  in 
ascertaining  such  amount  payable  on  death. 

(6)  If  the  employe  leaves  collateral  heirs  dependent  upon 
his  earnings,  such  a  percentage  of  the  sum  provided  in  sec- 
tion (a)  as  the  contributions  which  deceased  made  to  the 
support  of  these  dependents,  bore  to  his  earnings. 

(c)  If  the  employe  leaves  no  widow  or  child  or  children, 
parents  or  lineal  or  collateral  heirs  dependent  upon  his  earn- 
ings, a  sum  not  to  exceed  one  hundred  and  fifty  dollars  for 
burial  expenses. 

(d)  All  compensation  provided  for  in  this  section  to  be 
paid  in  case  injury  results  in  death,  shall  be  paid  in  install- 
ments equal  to  one-half  the  average  earnings,  at  the  same 
intervals  at  which  the  wages  or  earnings  of  the  employe  were 
paid  while  he  was  living;  or  if  this  shall  not  be  feasible,  then 
the  installments  shall  be  paid  weekly. 

(e)  The  compensation  to  be  paid  for  injuries  which  result 
in  death,  as  provided  for  in  this  section,  shall  be  paid  to  the 
personal  representative  of  the  deceased  employe  and  shall 
be  distributed  by  such  personal  representative  to  the  bene- 
ficiaries entitled  thereto,  in  accordance  with  the  laws  of  this 
State  relating  to  the  descent  and  distribution  of  personal 
property. 

Sec.  5.  The  amount  of  compensation  which  the  employer 
who  accepts  the  provisions  of  this  act  shall  provide  and  pay 
for  injury  to  the  employe  resulting  in  disability  shall  be: 

(a)  Necessary  first  aid,  medical,  surgical  and  hospital 
services,  also  medicine  and  hospital  services  for  a  period  not 
longer  than  eight  weeks,  not  to  exceed,  however,  the  amount 
of  two  hundred  dollars,  also  necessary  services  of  a  physician 
or  surgeon  during  such  period  of  disability,  unless  such  em- 
ploye elects  to  secure  his  own  physician  or  surgeon. 


900    Bradbury's  workmen's  compensation  law 

Illinois 

(h)  If  the  period  of  disability  lasts  for  more  than  six  work- 
ing days,  and  such  fact  is  determined  by  the  physician  or 
physicians,  as  provided  in  section  9,  compensation  equal  to 
one-half  of  the  earnings,  but  not  less  than  five  dollars  nor 
more  than  twelve  dollars  per  week,  beginning  on  the  eighth 
day  of  disability,  and  as  long  as  the  disability  lasts,  or  until 
the  amount  of  compensation  paid  equals  the  amount  pay- 
able as  a  death  benefit. 

(c)  If  any  employe,  by  reason  of  any  accident  arising  out 
of  and  in  the  course  of  his  employment,  receive  any  serious 
and  permanent  disfigurement  to  the  hands  or  face,  but  which 
injury  does  not  actually  incapacitate  the  employ^  from  pur- 
suing his  usual  or  customary  employment  so  that  it  is  possi- 
ble to  measure  compensation  in  accordance  with  the  scale 
of  compensation  and  the  methods  of  computing  the  same 
herein  provided,  such  employ^  shall  have  the  right  to  resort 
to  the  arbitration  provisions  of  this  act  for  the  purpose  of 
determining  a  reasonable  amount  of  compensation  to  be 
paid  to  such  employ^,  but  not  to  exceed  one-quarter  {}4)  of 
the  amount  of  his"  compensation  in  case  of  death. 

(d)  If  after  the  injury  has  been  received  it  shall  appear 
upon  medical  examination  as  provided  for  in  section  9,  that 
the  employ^  has  been  partially,  though  permanently  in- 
capacitated from  pursuing  his  usual  and  customary  line  of 
employment,  he  shall  receive  compensation  equal  to  one-half 
of  the  difference  between  the  average  amount  which  he  earned 
before  the  accident,  and  the  average  amount  which  he  is 
earning,  or  is  able  to  earn  in  some  suitable  employment  or 
business  after  the  accident,  if  such  employment  is  secured. 

(e)  In  the  case  of  complete  disability  which  renders  the 
employ^  wholly  and  permanently  incapable  of  work,  com- 
pensation for  the  first  eight  years  after  the  day  the  injury 
was  received,  equal  to  fifty  per  cent  of  his  earnings,  but  not 
less  than  five  dollars  nor  more  than  twelve  dollars  per  week. 
If  complete  disability  continues  after  the  payment  of  a  sum 


TEXTS  Of  compensation  acts  001 

Illinois 

equal  to  the  amount  of  the  death  benefit  or  after  the  ex- 
piration of  the  eight  years,  then  a  compensation  during  life, 
equal  to  eight  per  cent  of  the  death  benefit  which  would  have 
been  payable  had  the  accident  resulted  in  death.  Such  com- 
pensation shall  not  be  less  than  ten  dollars  per  month  and 
shall  be  payable  monthly. 

(1)  In  case  death  occurs  before  the  total  of  the  payments 
made  equals  the  amount  payable  as  a  death  benefit,  as  pro- 
vided in  section  4,  article  (a),  then  in  case  the  employe 
leaves  any  widow,  child  or  children,  or  parents,  or  other 
lineal  heirs,  they  shall  be  paid  the  difference  between  the 
compensation  for  death  and  the  sum  of  such  payment,  but 
in  no  case  shall  this  sum  be  less  than  five  hundred  dollars. 

(2)  In  cases  of  complete  disability,  after  compensation 
has  been  paid  at  the  specified  rate  for  a  term  of  at  least  six 
months,  the  employe  shall  have  the  privilege  of  filing  a 
petition  in  accordance  with  article  (d)  of  section  4  of  this  act, 
asking  for  a  lump  sum  payment  of  the  difference  between  the 
sum  of  the  payments  received  and  the  compensation  to 
which  he  was  entitled  when  such  permanent  disability  had 
been  definitely  determined.  For  the  purpose  of  this  section, 
blindness  or  the  total  and  irrecoverable  loss  of  sight,  the  loss 
of  both  feet  at  or  above  the  ankle,  the  loss  of  both  hands  at 
or  above  the  wrist,  the  loss  of  one  hand  and  one  foot,  an  in- 
jury to  the  spine  resulting  in  permanent  paralysis  of  the  legs 
or  arms,  and  a  fracture  of  the  skull  resulting  in  incurable 
imbecility  or  insanity,  shall  be  considered  complete  and 
permanent  disability:  Provided,  these  specific  cases  of  com- 
plete disability  shall  not,  however,  be  construed  as  excluding 
other  cases. 

(3)  In  fixing  the  amount  of  the  disability  payments,  re- 
gard shall  be  had  to  any  payments,  allowance  or  benefit 
which  the  employe  may  have  received  from  the  employer 
during  the  period  of  his  incapacity,  except  the  expenses  of 
necessary  medical  or  surgical  treatment.     In  no  event,  ex- 


902    Bradbury's  workmen's  compensation  law 

Illinois 

cept  in  cases  of  complete  disability  as  defined  above,  shall 
any  weekly  payment  payable  under  the  compensation  plan 
in  this  section  provided  exceed  twelve  dollars  per  week,  or 
extend  over  a  period  of  more  than  eight  years  from  the  date 
of  the  accident.  In  case  an  injured  employ^  shall  be  in- 
competent at  the  time  when  any  right  or  privilege  accrues 
to  him  under  the  provisions  of  this  act,  a  conservator  or 
guardian  of  the  incompetent,  appointed  pursuant  to  law, 
may  on  behalf  of  such  incompetent,  claim  and  exercise  any 
such  right  or  privilege  with  the  same  force  and  effect  as  if  the 
employ^  himself  had  been  competent  and  had  claimed  or 
exercised  said  right  or  privilege;  and  no  limitations  of  time 
by  this  act  provided,  shall  run  so  long  as  said  incompetent 
employe  had  no  conservator  or  guardian. 

Sec.  b}/2.  Any  person  entitled  to  compensation  under  this 
act,  or  any  employer  who  shall  be  bound  to  pay  compensa- 
tion under  this  act,  who  shall  desire  to  have  such  compensa- 
tion, or  any  part  thereof,  paid  in  a  lump  sum,  may  petition 
any  court  of  competent  jurisdiction  of  the  county  in  which 
the  employe  resided  or  worked  at  the  time  of  disability  or 
death,  asking  that  such  compensation  be  so  paid,  and  if  upon 
proper  notice  to  the  interested  parties,  and  a  proper  showing 
made  before  such  court,  it  appears  to  the  best  interest  of  the 
parties  that  such  compensation  be  so  paid,  the  court  shall 
order  payment  of  a  lump  sum,  and  where  necessary,  upon 
proper  application  being  made,  a  guardian,  conservator  or 
administrator,  as  the  case  may  be,  shall  be  appointed  for  any 
person  under  disability  who  may  be  entitled  to  any  such 
compensation,  and  an  employer  bound  by  the  terms  of  this 
act,  and  liable  to  pay  such  compensation,  may  petition  for 
such  appomtment  where  no  such  legal  representatives  have 
been  appointed  or  acting  for  such  party  or  parties  so  under 
disability. 

Sec.  6.  The  basis  for  computing  the  compensation  pro- 
vided for  in  sections  4  and  5  of  this  act  shall  be  as  follows: 


TEXTS   OF   COMPENSATION  ACTS  003 

Illinois 

(a)  The  compensation  shall  be  computed  on  the  basis  of 
the  annual  earnings  which  the  injured  person  received  as 
salary,  wages  or  earnings  in  the  employment  of  the  same  em- 
ployer during  the  year  next  preceding  the  injury. 

(b)  Employment  by  the  same  employer  shall  be  taken  to 
mean  employment  by  the  same  employer  in  the  grade  in 
which  the  employe  was  employed  at  the  time  of  the  accident, 
uninterrupted  by  absence  from  work  due  to  illness  or  any 
other  unavoidable  cause. 

(c)  The  annual  earnings  if  not  otherwise  determinable 
shall  be  regarded  as  three  hundred  times  the  average  daily 
earnings  in  such  computation. 

(d)  If  the  injured  person  has  not  been  engaged  in  the  em- 
ployment for  a  full  year  immediately  preceding  the  accident, 
the  compensation  shall  be  computed  according  to  the  annual 
earnings,  which  persons  of  the  same  class  in  the  same  or  in 
neighboring  employments  of  the  same  kind  have  earned 
during  such  period.  And  if  this  basis  of  computation  is  im- 
possible, or  should  appear  to  be  unreasonable,  three  hun- 
dred times  the  amount  which  the  injured  person  earned  on 
an  average  on  those  days  when  he  was  working  during  the 
year  next  preceding  the  accident,  shall  be  used  as  a  basis 
for  the  computation. 

(e)  In  the  case  of  injured  employes  who  earn  either  no 
wage  or  less  than  three  hundred  times  the  usual  daily  wage 
or  earnings  of  the  adult  day  laborers  in  the  same  line  of  in- 
dustry of  that  locality,  the  yearly  wage  shall  be  reckoned 
as  three  hundred  times  the  average  daily  local  wage. 

(/)  As  to  employes  in  employments  in  which  it  is  the  cus- 
tom to  operate  for  a  part  of  the  whole  number  of  working 
days  in  each  year,  such  number  shall  be  used  instead  of  three 
hundred  as  a  basis  for  computing  the  annual  earnings,  pro- 
vided the  minimum  number  of  days  which  shall  be  used  for 
the  basis  of  the  year's  work  shall  be  not  less  than  two  hun- 
dred. 


904    Bradbury's  workmen's  compensation  law 

Illinois 

(g)  Earnings,  for  the  purpose  of  this  section,  shall  be  based 
on  the  earnings  for  the  number  of  hours  commonly  regarded 
as  a  day's  work  for  that  employment,  and  shall  exclude  over- 
time earnings.  The  earnings  shall  not  include  any  sum  which 
the  employer  has  been  accustomed  to  pay  the  employ^  to 
cover  any  special  expense  entailed  on  him  by  the  nature  of 
his  employment. 

(h)  In  computing  the  compensation  to  be  paid  to  any 
employe  who,  before  the  accident  for  which  he  claims  com- 
pensation, was  disabled  and  drawing  compensation  under 
the  terms  of  this  act,  the  compensation  for  each  subsequent 
injury  shall  be  apportioned  according  to  the  proportion  of 
incapacity  and  disability  caused  by  the  respective  injuries 
which  he  may  have  suffered. 

Sec.  7.  The  compensation  herein  provided  shall  be  the 
measure  of  the  responsibility  which  the  employer  has  assumed 
for  injuries  or  death  that  may  occur  to  employes  in  his  em- 
ployment subject  to  the  provisions  of  this  act,  and  it  shall 
not  be  in  any  way  reduced  by  contributions  from  employes. 

Sec.  8.  If  it  is  proved  that  the  injury  to  the  employe  re- 
sulted from  his  deUberate  intention  to  cause  such  injury,  no 
compensation  with  respect  to  that  injury  shall  be  allowed. 

Sec.  9.  Any  employ^  entitled  to  receive  disability  pay- 
ments shall  be  required  if  requested  by  the  employer  to  sub- 
mit himself  for  examination  at  the  expense  of  the  employer 
to  a  duly  qualified  medical  practitioner  or  surgeon  selected 
by  the  employer,  at  a  time  and  place  reasonably  convenient 
for  the  employ^,  as  soon  as  practicable  after  the  injury,  and 
also  one  week  after  the  first  examination,  and  thereafter  at 
intervals  not  oftener  than  once  every  four  weeks,  which  ex- 
aminations shall  be  for  the  purpose  of  determining  the  nature, 
extent  and  probable  duration  of  the  injury  received  by  the 
employe,  and  for  the  purpose  of  adjusting  the  compensation 
which  may  be  due  the  employ^  from  time  to  time  for  disa- 
bility according  to  the  provisions  of  sections  4  and  5  of  this 


TEXTS   OF   COMPENSATION   ACTS  905 

Illinois 

act:  Provided,  however,  that  such  examination  shall  be  made 
in  the  presence  of  a  duly  qualified  medical  practitioner  or  sur- 
geon provided  and  paid  for  by  the  employe,  if  such  employ^ 
so  desires,  and  in  the  event  of  a  disagreement  between  said 
medical  practitioners  or  surgeons  as  to  the  nature,  extent 
or  probable  duration  of  said  injury  or  disability,  they  may 
agree  upon  a  third  medical  practitioner  or  surgeon,  and,  fail- 
ing to  agree  upon  such  third  medical  practitioner  or  surgeon, 
the  judge  of  the  county  court  of  the  county  where  the  em- 
ploye resided  or  was  employed  at  the  time  of  the  injury,  shall 
within  six  days  after  petition  filed  in  such  court  for  that  pur- 
pose, select  a  third  medical  practitioner  or  surgeon  and  the 
majority  report  of  such  three  physicians  as  to  the  nature, 
extent  and  probable  duration  of  such  injury  or  disability 
shall  be  used  for  the  purpose  of  estimating  the  amount  of 
compensation  payable  under  this  act.  If  the  employ^  re- 
fuses so  to  submit  himself  to  examination  or  unnecessarily 
obstructs  the  same,  his  right  to  compensation  payments 
shall  be  temporarily  suspended  until  such  examination  shall 
have  taken  place,  and  no  compensation  shall  be  payable 
under  this  act  during  such  period. 

Sec.  10.  Any  question  of  law  or  fact  arising  in  regard 
to  the  application  of  this  law  in  determining  the  com- 
pensation payable  hereunder  shall  be  determined  either  by 
agreement  of  the  parties  or  by  arbitration  as  herein  provided. 
In  case  any  such  question  arises  which  cannot  be  settled  by 
agreement,  the  employe  and  the  employer  shall  each  select 
a  disinterested  party  and  the  judge  of  the  county  court  or 
other  court  of  competent  jurisdiction,  of  the  county  where 
the  injured  employe  resided  or  worked  at  the  time  of  the  in- 
jury, shall  appoint  a  third  disinterested  party,  such  persons 
to  constitute  a  Board  of  Arbitrators  for  the  purpose  of  hear- 
ing and  determining  all  such  disputed  questions  of  law  or 
fact  arising  in  regard  to  the  application  of  this  law  in  deter- 
mining the  compensation  payable  hereunder;  and  it  shall  be 


906    Bradbury's  workmen's  compensation  law 

Illinois 

the  duty  of  both  employe  and  employer  to  submit  to  such 
Board  of  Arbitrators  not  later  than  ten  days  after  the 
selection  and  appointment  of  such  arbitrators  all  facts  or 
evidence  which  may  be  in  their  possession  or  under  their 
control,  relating  to  the  questions  to  be  determined  by  said 
arbitrators;  and  said  Board  of  Arbitrators  shall  hear  all  the 
evidence  submitted  bj''  both  parties  and  they  shall  have  ac- 
cess to  any  books,  papers  or  records  of  either  the  employer 
or  the  employe  showing  any  facts  which  may  be  material  to 
the  questions  before  them,  and  they  shall  be  empowered  to 
visit  the  place  or  plant  where  the  accident  occurred,  to  direct 
the  injured  employe  to  be  examined  by  a  regular  practicing 
physician  or  surgeon,  and  to  do  all  other  acts  reasonably 
necessary  for  a  proper  investigation  of  all  matters  in  dispute. 
A  copy  of  the  report  of  the  arbitrators  in  each  case  shall  be 
prepared  and  filed  by  them  with  the  State  Bureau  of  Labor 
Statistics,  and  shall  be  binding  upon  both  the  employer  and 
employe  except  for  fraud  and  mistake:  Provided,  that  either 
party  to  such  arbitration  shall  have  the  right  to  appeal  from 
such  report  or  award  of  the  arbitrators  to  the  Circuit  Court 
or  the  court  that  appointed  the  third  arbitrator  of  the  county 
where  the  injury  occurred  by  filing  a  petition  in  such  court 
within  twenty  days  after  the  filing  of  the  report  of  the  ar- 
bitrators, and  upon  filing  a  good  and  sufficient  bond,  in  the 
discretion  of  the  court,  and  upon  such  appeal  the  questions 
in  dispute  shall  be  heard  de  novo,  and  either  party  may 
have  a  jury  upon  filing  a  written  demand  therefor  with  his 
petition. 

Sec.  11.  Any  person  entitled  to  payment  under  the  com- 
pensation provisions  of  this  act  from  the  employer  shall  have 
the  same  preferential  claim  therefor  against  the  property  of 
the  employer  as  is  now  allowed  by  law  for  a  claim  by  such 
person  against  such  employer  for  unpaid  wages  or  for  per- 
sonal services,  such  preference  to  prevail  against  wage 
claims  of  all  other  employes,  not  entitled  to  compensation 


TEXTS   OP   COMPENSATION   ACTS  907 


Illinois 


for  injuries,  and  the  payments  due  under  such  compensation 
provisions  shall  not  be  subject  to  attachment,  levy,  execu- 
tion, garnishment  or  satisfaction  of  debts,  except  to  the  same 
extent  and  in  the  same  manner  as  wages  or  earnings  for  per- 
sonal service  are  now  subject  to  attachment,  levy,  execution, 
garnishment  or  satisfaction  of  debts  under  the  laws  of  this 
State,  and  shall  not  be  assignable.  Any  right  to  receive 
compensation  hereunder  shall  be  extinguished  by  the  death 
of  the  person  or  persons  entitled  thereto,  subject  to  the 
provisions  of  this  act  relative  to  compensation  for  death  re- 
ceived in  the  course  of  employment.  No  claim  of  any 
attorney-at-law  for  services  in  securing  a  recovery  under  this 
act  shall  be  an  enforceable  lien  thereon  unless  the  amount  of 
the  same  be  approved  in  writing  by  a  judge  of  a  court  of  rec- 
ord which  approval  may  be  made  in  term  time,  or  vacation. 

Sec.  12.  Any  contract  or  agreement  made  by  any  em- 
ployer or  his  agent  or  attorney  with  any  employe  or  any 
other  beneficiary  of  any  claim  under  the  provisions  of  this- 
act  within  seven  days  after  the  injury  shall  be  presumed  to 
be  fraudulent. 

Sec.  13.  No  employ^  or  beneficiary  shall  have  power  to 
waive  any  of  the  provisions  of  this  act  in  regard  to  the 
amount  of  compensation  which  may  be  payable  to  such  em- 
ploye or  beneficiary  hereunder. 

Sec.  14.  No  proceedings  for  compensation  under  the  act 
shall  be  maintained  unless  notice  of  the  accident  has  been 
given  to  the  employer  as  soon  as  practicable  after  the  hap- 
pening thereof,  and  during  such  disability,  and  unless  claim 
for  compensation  has  been  made  within  six  months  after  the 
injury,  "except  that  in  case  of  an  accident  resulting  in 
temporary  disability,  notice  of  such  accident  must  be  given 
to  the  employer  within  thirty  days  after  said  accident,"  or 
in  case  of  the  death  of  the  employe  or  in  the  event  of  his 
incapacity,  within  six  months  after  such  death  or  incapacity, 
or  in  the  event  that  payments  have  been  made  under  the 


908    Bradbury's  workmen's  cOMPEisrsATiON  law 

Illinois 

provisions  of  this  act,  within  six  months  after  such  payments 
have  ceased.  No  want  or  defect  or  inaccuracy  of  such  notice 
shall  be  a  bar  to  the  maintenance  of  proceedings  by  arbitra- 
tion or  otherwise  by  the  employe,  unless  the  employer  proves 
that  he  is  unduly  prejudiced  in  such  proceedings  by  such 
want,  defect  or  inaccuracy.  Notice  of  the  accident  shall,  in 
substance,  apprise  the  employer  of  the  claim  of  compensa- 
tion made  and  shall  state  the  name  and  address  of  the  em- 
ploye injured,  the  approximate  date  and  place  of  the  acci- 
dent, if  known,  and  in  simple  language  the  cause  thereof; 
which  notice  may  be  served  personally  or  by  registered  mail, 
addressed  to  the  employer  at  his  last  known  residence  or 
place  of  business:  Provided,  that  the  failure  on  the  part  of 
any  person  entitled  to  such  compensation  to  give  such  notice 
shall  not  relieve  the  employer  from  his  liability  for  such 
compensation,  when  the  facts  and  circumstances  of  such 
accident  are  known  to  such  employer  or  his  agent  supervis- 
ing work  in  which  such  employe  was  engaged  at  the  time  of 
the  injury. 

Sec.  15.  This  act  shall  not  affect  or  disturb  the  continu- 
ance of  any  existing  insurance,  mutual  aid,  benefit  or  relief 
association  or  department,  whether  maintained  in  whole  or 
in  part  by  the  employer  or  whether  maintained  by  the  em- 
ployes, the  payment  of  benefits  of  such  association  or  de- 
partment being  guaranteed  by  the  employer  or  by  some 
person,  firm  or  corporation  for  him:  Provided,  the  employer 
contributes  to  such  association  or  department  an  amount 
sufficient  to  insure  the  employes  or  other  beneficiary  the  full 
compensation  herein  provided,  exclusive  of  the  cost  of  the 
maintenance  of  such  association  or  department  without  any 
expense  to  the  employ^.  This  act  shall  not  prevent  the 
organization  and  maintaining  under  the  insurance  law  of  this 
State  of  any  benefit  or  insurance  company  for  the  purpose  of 
insuring  against  the  compensation  provided  for  in  this  act, 
the  expense  of  which  is  maintained  by  the  employer.    This 


TEXTS   OF   COMPENSATION   ACTS  909 


Illinois 


act  shall  not  prevent  the  organization  or  maintaining  under 
the  insurance  laws  of  this  State  of  any  voluntary  mutual  aid, 
benefit  or  relief  association  among  employes  for  the  payment 
of  additional  accident  or  sick  benefits. 

No  existing  insurance,  mutual  aid,  benefit  or  relief  asso- 
ciation or  department  shall,  by  reason  of  anything  herein 
contained,  be  authorized  to  discontinue  its  operation  without 
first  discharging  its  obligations  to  any  and  all  persons  carry- 
ing insurance  in  the  same  or  entitled  to  relief  or  benefits 
therein. 

Any  contract  of  emplo3nnent,  relief  benefit,  or  insurance 
or  other  device  whereby  the  employe  is  required  to  pay  any 
premium  or  premiums  for  insurance  against  the  compensa- 
tion provided  for  in  this  act  shall  be  null  and  void,  and  any 
employer  withholding  from  the  wages  of  any  employe  any 
amount  for  the  purpose  of  paying  any  such  premium  shall  be 
guilty  of  a  misdemeanor  and  punishable  by  a  fine  of  not  less 
than  ten  dollars  nor  more  than  twenty-five  dollars  in  each 
otTense  in  the  discretion  of  the  court. 

Sec.  16.  Any  person  who  shall  become  entitled  to  com- 
pensation under  the  provisions  of  this  act,  shall,  in  the  event 
of  his  inability  to  recover  such  compensation  from  the  em- 
ployer on  account  of  his  insolvency,  be  subrogated  to  all  the 
rights  of  such  employer  against  any  insurance  company  or 
association  which  may  have  insured  such  employer,  against 
loss  growing  out  of  the  compensation  required  by  the  pro- 
visions of  this  act  to  be  paid  by  such  employer,  and  in  such 
case  only,  a  payment  of  the  compensation  that  has  accrued 
to  the  person  entitled  thereto  in  accordance  with  the  provi- 
sions of  this  act,  shall  relieve  such  insurance  company  from 
such  Hability. 

Sec.  17.  Where  the  injury  for  which  compensation  is 
payable  under  this  act  was  caused  under  circumstances 
creating  a  legal  liability  in  some  person,  other  than  the  em- 
ployer, to  pay  damages  in  respect  thereof: 


910    Bradbury's  workmen's  compensation  law 

Illinois 

(a)  The  employe  or  beneficiary  may  take  proceedings  both 
against  that  person  to  recover  damages  and  against  the 
employer  for  compensation,  but  the  amount  of  the  compen- 
sation which  he  is  entitled  to  under  this  act  shall  be  reduced 
by  the  amount  of  damages  recovered. 

(6)  If  the  employe  or  beneficiary  has  recovered  compensa- 
tion under  this  act,  the  employer  by  whom  the  compensation 
was  paid  or  the  person  who  has  been  called  upon  to  pay  the 
indemnity  under  sections  4  and  5  of  this  act,  may  be  entitled 
to  indemnity  from  the  person  so  liable  to  pay  damages  as 
aforesaid,  and  shall  be  subrogated  to  the  rights  of  the  em- 
ploye to  recover  damages  therefor. 

Sec.  18.  An  agreement  or  award  may,  at  any  time  after 
six  months  and  before  eighteen  months  from  the  date  of 
filing,  be  reviewed,  upon  the  application  of  either  party,  on 
the  ground  that  the  incapacity  of  the  employ^  has  subse- 
quently increased  or  diminished.  Such  application  shall  be 
made  to  any  court  of  competent  jurisdiction  and  unless  the 
parties  consent  to  arbitration,  the  court  may  appoint  a 
medical  practitioner  to  examine  the  employe  and  report 
upon  his  condition;  and  upon  his  report,  and  after  hearing 
all  the  evidence  the  court  may  modify  such  agreement  or 
award,  as  may  be  just,  by  ending,  increasing  or  diminishing 
the  compensation,  subject  to  the  limitations  hereinbefore 
provided. 

Sec.  19.  It  shall  be  the  duty  of  every  employer  within  the 
provisions  of  this  act  to  send  to  the  Secretary  of  the  State 
Bureau  of  Labor  Statistics  in  writing  an  immediate  report  of 
all  accidents  or  injuries  arising  out  of  or  in  the  course  of  the 
employment  and  resulting  in  death;  it  shall  also  be  the  duty 
of  every  such  employer  to  report  between  the  fifteenth  and 
the  twenty-fifth  of  each  month  to  the  Secretary  of  the  State 
Bureau  of  Labor  Statistics  all  accidents  or  injuries  for  which 
compensation  has  been  paid  under  this  act,  which  accidents 
or  injuries  entail  a  loss  to  the  employ^  of  more  than  one  week's 


TEXTS   OF   COMPENSATION   ACTS  911 

Illinois 

time,  and  in  case  the  injury  results  in  permanent  disability, 
such  report  shall  be  made  as  soon  as  it  is  determined  that 
such  permanent  disability  has  resulted  or  will  result  from 
such  injury.  All  such  reports  shall  state  the  date  of  the 
injury,  including  the  time  of  day  or  night,  the  nature  of  the 
employer's  business,  the  age,  sex,  conjugal  condition  of  the 
injured  person,  the  specific  occupation  of  the  injured  person, 
the  direct  cause  of  the  injury  and  the  nature  of  the  accident, 
the  nature  of  the  injury,  the  length  of  disability  and,  in  case 
of  death,  the  length  of  disability  before  death,  the  wages  of 
the  injured  person,  whether  compensation  has  been  paid  to 
the  injured  person,  or  to  his  legal  representative  or  his  heirs 
or  next  of  kin,  the  amount  of  compensation  paid,  the  amount 
paid  for  physicians',  surgeons'  and  hospital  bills,  and  by 
whom  paid,  and  the  amount  paid  for  funeral  or  burial  ex- 
penses, if  known.  The  making  of  reports  as  provided  herein 
shall  release  the  employer  covered  by  the  provisions  of  this 
act,  from  making  reports  to  any  other  officer  of  the  State. 

Sec.  20.  Any  person,  firm  or  corporation  who  undertakes 
to  do  or  contracts  with  other  to  do,  or  have  done  for  him, 
them  or  it,  any  work  embraced  in  section  2  of  this  act,  re- 
quiring such  dangerous  employment  of  employes  in,  or  about 
premises  where  he,  they  or  it^  as  principal  or  principals, 
contract  to  do  such  work  or  any  part  thereof,  and  does  not 
require  that  the  compensation  provided  for  in  this  act  shall 
be  insured  to  the  employe  or  beneficiary  by  any  such  per- 
son, firm  or  corporation  undertaking  to  do  such  work  and 
any  such  person,  firm  or  corporation  who  creates  or  carries 
into  operation  anj^  fraudulent  scheme,  artifice  or  device  to 
enable  him,  them  or  it  to  execute  such  work  without  such 
person,  firm  or  corporation  being  responsible  to  the  employe 
or  beneficiaries  entitled  to  such  compensation  under  the  pro- 
visions of  this  act,  such  person,  firm  or  corporation  shall  be 
included  in  the  term  "employer"  and  with  the  immediate 
employer  shall  be  jointly  and  severally  liable  to  pay  the 


912    Bradbury's  workmen's  compensation  law 

Illinois 

compensation  herein  provided  for,  and  be  subject  to  all  the 
provisions  of  this  act. 

Sec.  21.  The  term  "employe"  as  used  in  this  act  shall  be 
held  to  include  only  such  persons  as  may  be  exposed  to  the 
necessary  hazards  of  carrying  on  any  employment  or  enter- 
prise referred  to  in  section  2  of  this  act.  Persons  whose 
employment  is  of  a  casual  nature  and  who  are  employed 
otherwise  than  for  the  purpose  of  the  employer's  trade  or 
business,  are  not  included  in  the  foregoing  definition. 

Sec.  22.  Section  21  shall  not  be  construed  to  include  any 
employe  engaged  in  any  work  of  an  incidental  character  un- 
connected with  the  dangers  necessarily  involved  in  carrying 
on  any  employment  or  enterprise  referred  to  in  section  2,  or 
in  any  work  of  a  clerical  or  administrative  nature  which  does 
not  expose  the  employ^  to  the  inherent  hazards  of  any  such 
employment  or  enterprise. 

Sec.  23.  Any  willful  neglect,  refusal,  or  failure  to  do  the 
things  required  to  be  done  by  any  section,  clause,  or  provi- 
sion of  this  act,  on  the  part  of  the  person  or  persons  herein 
required  to  do  them,  or  any  violation  of  any  of  the  provi- 
sions or  requirements  hereof,  or  any  attempt  to  obstruct  or 
interfere  with  any  court  officer,  member  of  an  arbitration 
board  herein  provided  for,  or  with  the  Secretary  of  the 
Bureau  of  Labor  Statistics  or  his  deputy,  in  the  discharge 
of  the  duties  herein  imposed  upon  any  of  them,  or  any  re- 
fusal to  comply  with  the  terms  of  this  act,  shall  be  deemed 
a  misdemeanor,  punishable  by  a  fine  of  not  less  than  ten 
dollars  nor  more  than  five  hundred  dollars,  at  the  discretion 
of  the  court. 

Sec.  233/^.  The  right  of  action  for  damages  caused  by  any 
such  injury,  at  common  law  or  any  other  statute  in  force 
prior  to  the  taking  of  effect  hereof  shall  not  be  affected  by 
this  act  and  every  existing  right  of  action  for  negligence  or 
to  recover  damages  for  injury  resulting  in  death,  is  continued 
and  nothing  in  this  act  shall  be  construed  a©  limiting  the 


TEXTS   OF   COMPENSATION   ACTS  913 

Kansas 

right  of  such  action  so  accrued  before  the  taking  effect  of 
this  act. 

Sec.  24.  The  invalidity  of  any  portion  of  this  act  shall  in 
no  way  affect  the  validity  of  any  other  portion  thereof  which 
can  be  given  effect  without  such  invalid  part. 

Sec.  25.  This  act  shall  take  effect  and  be  in  force  on  and 
after  the  first  day  of  May,  1912. 

Approved  by  Governor,  June  10th,  1911. 

KANSAS 

(L.  1911,  c.  000) 

An  act  to  provide  compensation  for  workmen  injured  in 
certain  hazardous  industries. 
Be  it  enacted  by  the  Legislature  of  the  State  of  Kansas : 

THE   OBLIGATION 

Section  1.  If  in  any  employment  to  which  this  act  ap- 
plies, personal  injury  by  accident  arising  out  of  and  in  the 
course  of  employment  is  caused  to  a  workman,  his  employer 
shall,  subject  as  hereinafter  mentioned,  be  liable  to  pay 
compensation  to  the  workman  in  accordance  with  this  act. 
Save  as  herein  provided,  no  such  employer  shall  be  liable  for 
any  injury  for  which  compensation  is  recoverable  under  this 
act;  provided,  that  (a)  the  employer  shall  not  be  liable  under 
this  act  in  respect  of  any  injury  which  does  not  disable  the 
workman  for  a  period  of  at  least  two  weeks  from  earning  full 
wages  at  the  work  at  which  he  is  employed ;  (6)  if  it  is  proved 
that  the  injury  to  the  workman  results  from  his  deliberate 
intention  to  cause  such  injury,  or  from  his  willful  failure  to 
use  a  guard  or  protection  against  accident  required  pursuant 
to  any  statute  and  provided  for  him,  or  a  reasonable  and 
proper  guard  and  protection  voluntarily  furnished  him  by 
said  employer,  or  solely  from  his  deliberate  breach  of  statu- 
tory regulations  affecting  safety  of  life  or  limb,  or  from  his 

58 


914    Bradbury's  workmen's  compensation  law 

Kansas 

intoxication,  any  compensation  in  respect  to  that  injury  shall 
be  disallowed. 

RESERVATION   OF  LIABILITY   FOR   WRONG   OR  NEGLIGENCE   IN 

CERTAIN    CASES 

Sec.  2.  Where  the  injury  was  proximately  caused  by  the 
individual  negligence,  either  of  commission  or  omission,  of 
the  employer,  including  such  negligence  of  the  directors  or 
of  any  managing  officer  or  managing  agent  of  such  em- 
ployer if  a  corporation,  or  of  any  of  the  partners  if  such 
employer  is  a  partnership,  or  of  any  member  if  such  employer 
is  an  association,  but  excluding  the  negligence  of  competent 
employes  in  the  performance  of  their  duties  or  of  the  em- 
ployer's duty  delegated  to  them,  the  existing  liability  of  the 
employer  shall  not  be  affected  by  this  act,  but  in  such  case 
the  injured  workman,  or  if  death  results  from  such  injury, 
his  dependents  as  herein  defined,  if  they  unanimously  agree, 
otherwise  his  legal  representative,  may  elect  between  any 
right  of  action  against  the  employer  upon  such  liability  and 
the  right  to  compensation  under  this  act. 

RESERVATION    OF   PENALTIES 

Sec.  3.  Nothing  in  this  act  shall  affect  the  liability  of  the 
employer  or  employe  to  a  fine  or  penalty  under  any  other 
statute. 

SUBCONTRACTING 

Sec.  4.  (a)  Where  any  person  (in  this  section  referred  to 
as  principal)  undertakes  to  execute  any  work  which  is  a  part 
of  his  trade  or  business  or  which  he  has  contracted  to  perform 
and  contracts  with  any  other  person  (in  this  section  referred 
to  as  the  contractor)  for  the  execution  by  or  under  the  con- 
tractor of  the  whole  or  any  part  of  the  work  undertaken  by 
the  principal,  the  principal  shall  be  liable  to  pay  to  any 
workman  employed  in  the  execution  of  the  work  any  com- 
pensation under  this  act  which  he  would  have  been  liable  to 


TEXTS   Oy   COMPENSATION   ACTS  915 

Kansas 

pay  if  that  workman  had  been  immediately  employed  by  him; 
and  where  compensation  is  claimed  from  or  proceedings  are 
taken  against  the  principal,  then,  in  the  application  of  this 
act,  references  to  the  principal  shall  be  substituted  for  refer- 
ences to  the  employer,  except  that  the  amount  of  compen- 
sation shall  be  calculated  with  reference  to  the  earnings  of 
the  workman  under  the  employer  by  whom  he  is  immediately 
employed.  (6)  Where  the  principal  is  liable  to  pay  compensa- 
tion under  this  section,  he  shall  be  entitled  to  indemnity  from 
any  person  who  would  have  been  liable  to  pay  compensation 
to  the  workman  independently  of  this  section,  and  shall  have 
a  cause  of  action  therefor,  (c)  Nothing  in  this  section  shall  be 
construed  as  preventing  a  workman  from  recovering  compen- 
sation under  this  act  from  the  contractor  instead  of  the  prin- 
cipal, (d)  This  section  shall  not  apply  to  any  case  where  the 
accident  occurred  elsewhere  than  on  or  in,  or  about  the  prem- 
ises on  which  the  principal  has  undertaken  to  execute  work  or 
which  are  otherwise  under  his  control  or  management,  or  on, 
in,  or  about  the  execution  of  such  work  under  his  control  or 
management,  (e)  A  principal  contractor,  when  sued  by  a 
workman  of  a  subcontractor,  shall  have  the  right  to  implead 
the  subcontractor.  (/)  The  principal  contractor  who  pays 
compensation  voluntarily  to  a  workman  of  a  subcontractor 
shall  have  the  right  to  recover  over  against  the  subcontractor. 

REMEDIES    BOTH   AGAINST  EMPLOYER   AND    STRANGER 

Sec.  5.  Where  the  injury  for  which  compensation  is  pay- 
able under  this  act  was  caused  under  circumstances  creating 
a  legal  liability  against  some  person  other  than  the  employer 
to  pay  damages  in  respect  thereof,  (a)  The  workman  may 
take  proceedings  against  that  person  to  recover  damages  and 
against  any  person  liable  to  pay  compensation  under  this 
act  for  such  compensation,  but  shall  not  be  entitled  to  recover 
both  damages  and  compensation;  and  (6)  If  the  workman 
has  recovered  compensation,  under  this  act,  the  person  by 
whom  the  compensation  was  paid,  or  any  person  who  has 


916    Bradbury's  workmen's  compensation  law 

Kansas 

been  called  on  to  indemnify  him  under  the  section  of  this  act 
relating  to  subcontracting,  shall  be  entitled  to  indemnity 
from  the  person  so  liable  to  pay  damages  as  aforesaid,  and 
shall  be  subrogated  to  the  rights  of  the  workman  to  recover 
damages  therefor. 

application  of  the  act 

Sec.  6.  This  act  shall  apply  only  to  employment  in  the 
course  of  the  employer's  trade  or  business  on,  in,  or  about  a 
railway,  factory,  mine  or  quarry,  electric,  building  or  en- 
gineering work,  laundry,  natural  gas  plant  and  all  employ- 
ments wherein  a  process  requiring  the  use  of  any  dangerous 
explosive  or  inflammable  materials  is  carried  on,  which  is 
conducted  for  the  purpose  of  business,  trade  or  gain;  each  of 
which  employments  is  hereby  determined  to  be  especially 
dangerous,  in  which  from  the  nature,  conditions  or  means 
of  prosecution  ot  the  work  therein,  extraordinary  risk  to 
the  life  and  limb  of  the  workman  engaged  therein  are  inherent, 
necessary,  or  substantially  unavoidable,  and  as  to  each  of 
which  employments  it  is  deemed  necessary  to  establish  a  new 
system  of  compensation  for  injuries  to  workmen.  This  act 
shall  not  apply  in  any  case  where  the  accident  occurred  be- 
fore this  act  takes  effect,  and  all  rights  which  have  accrued, 
by  reason  of  any  such  accident,  at  the  time  of  the  publication 
of  this  act,  shall  be  saved  the  remedies  now  existing  therefor, 
and  the  court  shall  have  the  same  power  as  to  them  as  if  this 
act  had  not  been  enacted. 

Sec.  7.  This  act  shall  not  be  construed  to  apply  to  business 
or  employments  which,  according  to  law,  are  so  engaged  in 
interstate  commerce  as  to  be  not  subject  to  the  legislative 
power  of  the  state,  nor  to  persons  injured  while  they  are  so 
engaged. 

Sec.  8.  It  is  hereby  determined  that  the  necessity  for  this 
law  and  the  reason  for  its  enactment,  exist  only  with  regard 
to  employers  who  employ  a  considerable  number  of  persons. 
This  act,  therefore,  shall  only  apply  to  employers  by  whom 


TEXTS   OF   COMPENSATION   ACTS  917 

Kansas 

fifteen  or  more  workmen  have  been  [employed]  continuously 
for  more  than  one  month  at  the  time  of  the  accident  and  who 
have  elected  or  shall  elect  before  the  accident  to  come  within 
the  provision  hereof;  provided,  however,  that  employers  hav- 
ing less  than  fifteen  workmen  may  elect  to  come  within  the 
provisions  of  this  act  in  which  case  his  employes  shall  be  in- 
cluded herein,  as  hereinafter  provided. 

DEFINITIONS 

Sec.  9.  In  this  act,  unless  the  context  otherwise  requires : 
(a)  "Railway"  includes  street  railways  and  interurbans, 
and  "employment  on  railways"  includes  work  in  depots; 
power  houses,  round-houses,  machine  shops,  yards,  and  upon 
the  right  of  way,  and  in  the  operation  of  its  engines,  cars  and 
trains,  and  to  employes  of  express  companies  while  running 
on  railroad  trains.  (6)  "Factory"  means  any  premises 
wherein  power  is  used  in  manufacturing,  making,  altering, 
adapting,  ornamenting,  finishing,  repairing  or  renovating 
any  article  or  articles  for  the  purpose  of  trade  or  gain  or  of 
the  business  carried  on  therein,  including  expressly  any  brick 
yard,  meat-packing  house,  foundry,  smelter,  oil  refinery,  lime 
burning  plant,  steam  heating  plant,  electric  lighting  plant,  elec- 
tric power  plant  and  water  power  plant,  powder  plant,  blast 
furnace,  paper  mill,  printing  plant,  flour  mill,  glass  factory, 
cement  plant,  artificial  gas  plant,  machine  or  repair  shop, 
salt  plant,  and  chemical  manufacturing  plant,  (c)  "Mine" 
means  any  opening  in  the  earth  for  the  purpose  of  extract- 
ing any  minerals,  and  all  underground  workings,  slopes, 
shafts,  galleries  and  tunnels,  and  other  ways,  cuts  and  open- 
ings connected  therewith,  including  those  in  the  course  of 
being  opened,  sunk  or  driven;  and  includes  all  the  appurtenant 
structures  at  or  about  the  openings  of  the  mine,  and  any  ad- 
joining adjacent  work  place  where  the  material  from  a  mine 
is  prepared  for  use  or  shipment,  (d)  "Quarry"  means  any 
place,  not  a  mine,  where  stone,  slate,  clay,  sand,  gravel  or 
other  solid  material  is  dug  or  otherwise  extracted  from  the 


918    Bradbury's  workmen's  compensation  law 

Kansas 

earth  for  the  purpose  of  trade  or  bargain  or  of  the  employer's 
trade  or  business,  (e)  "Electrical  work"  means  any  kind  of 
work  in  or  directly  connected  with  the  construction,  installa- 
tion, operation,  alteration,  removal  or  repair  of  wires,  cables, 
switchboards  or  apparatus,  used  for  the  transmission  of 
electrical  current.  (/)  "Building  work"  means  any  work  in 
the  erection,  construction,  extension,  decoration,  alteration, 
repair  or  demolition  of  any  building  or  structural  appurte- 
nance, (g)  "  Engineering  work  "  means  any  work  in  the  con- 
struction, alteration,  extension,  repair  or  demolition  of  a 
railway  (as  hereinbefore  defined)  bridge,  jetty,  dike,  dam,  res- 
ervoir, underground  conduit,  sewer,  oil  or  gas  well,  oil  tank, 
gas  tank,  water  tower,  or  water  works  (including  standpipes 
or  mains)  any  caisson  work  or  work  in  artificially  compressed 
air,  any  work  in  dredging,  pile  driving,  moving  buildings, 
moving  safes,  or  in  laying,  repairing  or  removing,  under- 
ground pipes  and  connections,  the  erection,  installing,  re- 
pairing, or  removing  of  boilers,  furnaces,  engines  and  power 
machinery  (including  belting  and  other  connections),  and 
any  work  in  grading  or  excavating  where  shoring  is  necessary 
or  power  machinery  or  blasting  powder,  dynamite  or  other 
high  explosives  is  in  use  (excluding  mining  and  quarrying). 
(h)  "Employer"  includes  any  person  or  body  of  persons 
corporate  or  unincorporate,  and  the  legal  representatives  of 
a  deceased  employer  or  the  receiver  or  trustee  of  a  person, 
corporation,  association  or  partnership,  (i)  "Workman" 
means  any  person  who  has  entered  into  the  employment  of 
or  works  under  contract  of  service  or  apprenticeship  with  an 
employer,  but  does  not  include  a  person  who  is  employed 
otherwise  than  for  the  purpose  of  the  employer's  trade  or 
business.  Any  reference  to  a  workman  who  has  been  injured 
shall,  where  the  workman  is'dead,  include  a  reference  to  his 
dependents,  as  hereinafter  defined,  or  to  his  legal  representa- 
tive, or  where  he  is  a  minor  or  incompetent,  to  his  guardian. 
(J)  "Dependents"  means  such  members  of  the  workman's 


TEXTS   OF   COMPENSATION   ACTS  919 

Kansas 

family  as  were  wholly  or  in  part  dependent  upon  the  work- 
man at  the  time  of  the  accident.  And  "members  of  a  family  " 
for  the  purposes  of  this  act  means  only  widow  or  husband,  as 
the  case  may  be,  and  children;  or  if  no  widow,  husband  or 
children,  then  parents  and  grandparents,  or  if  no  parents  or 
grandparents,  then  grandchildren;  or  if  no  grandchildren, 
then  brothers  and  sisters.  In  the  meaning  of  this  section 
parents  include  step-parents,  children  include  step-children, 
and  grandchildren  include  step-grandchildren,  and  brothers 
and  sisters  include  step-brothers  and  step-sisters,  and  children 
and  parents  include  that  relation  by  legal  adoption. 

INCOMPETENCY   OF   WORKMAN 

Sec.  10.  In  case  an  injured  workman  is  mentally  incom- 
petent or  a  minor,  or  where  death  results  from  the  injury,  in 
case  any  of  his  dependents  as  herein  defined  is  mentally  in- 
competent or  a  minor,  at  the  time  when  any  right,  privilege 
or  election  accrues  to  him  under  this  act,  his  guardian  may, 
in  his  behalf,  claim  and  exercise  such  right,  privilege,  or 
election,  and  no  limitation  of  time,  in  this  act  provided  for, 
shall  run,  so  long  as  such  incompetent  or  minor  has  no 
guardian. 

AMOUNT  OF   COMPENSATION 

Sec.  11.  The  amount  of  compensation  under  this  act  shall 
be,  (a)  Where  death  results  from  injury:  (1)  If  the  workman 
leaves  any  dependents  wholly  dependent  upon  his  earnings, 
an  amount  equal  to  three  times  his  earnings  for  the  preceding 
year  but  not  exceeding  thirty-six  hundred  dollars  and  not 
less  than  twelve  hundred  dollars,  provided,  such  earnings 
shall  be  computed  upon  the  basis  of  the  scale  which  he  re- 
ceived or  would  have  been  entitled  to  receive  had  he  been  at 
work,  during  the  thirty  days  next  preceding  the  accident; 
and,  if  the  period  of  the  workman's  employment  by  the  said 
employer  had  been  less  than  one  year,  then  the  amount  of 


920    Bradbury's  workmen's  compensation  law 

Kansas 

his  earnings  during  the  said  year  shall  be  deemed  to  be  fifty- 
two  times  his  average  weekly  earnings  during  the  period  of 
his  actual  employment  under  said  employer;  provided,  that 
the  amount  of  any  payments  made  under  this  act  and  any 
lump  sum  paid  hereunder  for  such  injury  from  which  death 
may  thereafter  result  shall  be  deducted  from  such  sum;  and 
provided,  however,  that  if  the  workman  does  not  leave  any 
dependents,  citizens  of  and  residing  at  the  time  of  the  accident 
in  the  United  States  or  the  Dominion  of  Canada,  the  amount 
of  compensation  shall  not  exceed  in  any  case  seven  hundred 
and  fifty  dollars.  (2)  If  the  workman  does  not  leave  any 
such  dependents,  but  leaves  any  dependents  in  part  depend- 
ent upon  his  earnings,  such  proportion  of  the  amount  payable 
under  the  foregoing  provisions  of  this  section,  as  may  be 
agreed  upon  or  determined  to  be  proportionate  to  the  injury 
to  the  said  dependents;  and  (3)  If  he  leaves  no  dependents, 
the  reasonable  expense  of  his  medical  attendance  and  burial, 
not  exceeding  one  hundred  dollars.  (6)  Where  total  in- 
capacity for  work  results  from  injury,  periodical  payments 
during  such  incapacity,  commencing  at  the  end  of  the  second 
week,  equal  to  fifty  per  cent  of  his  average  weekly  earnings 
computed  as  provided  in  section  12  but  in  no  case  less  than 
six  dollars  per  week  or  more  than  fifteen  dollars  per  week, 
(c)  When  partial  incapacity  for  work  results  from  injury, 
periodical  payments  during  such  incapacity,  commencing  at 
the  end  of  the  second  week,  shall  not  be  less  than  twenty-five 
per  cent,  nor  exceed  fifty  per  cent,  based  upon  the  average 
weekly  earnings  computed  as  provided  iij  section  12,  but  in 
no  case  less  than  three  dollars  per  week  or  more  than  twelve 
dollars  per  week;  provided,  however,  that  if  the  workman  is 
under  twenty-one  years  of  age  at  the  date  of  the  accident 
and  the  average  weekly  earnings  are  less  than  $10.00  his 
compensation  shall  not  be  less  than  seventy-five  per  cent  of 
his  average  earnings.  No  such  payment  for  total  or  partial 
disability  shall  extend  over  a  period  exceeding  ten  years. 


TEXTS   OF   COMPENSATION   ACTS  921 

Kansas 


RULE    FOR    COMPENSATION 

Sec.  12.  For  the  purposes  of  the  provisions  of  this  act  re- 
lating to  "earnings"  and  "average  earnings"  of  a  workman, 
the  following  rules  shall  be  observed:  (a)  "Average  earnings" 
shall  be  computed  in  such  manner  as  is  best  calculated  to 
give  the  average  rate  per  week  at  which  the  workman  was 
being  remunerated  for  the  52  weeks  prior  to  the  accident. 
Provided,  that  where  by  reason  of  the  shortness  of  time 
during  which  the  workman  has  been  in  the  employment  of 
his  employer,  or  the  casual  nature  or  the  terms  of  the  em- 
ployment, it  is  impracticable  to  compute  the  rate  of  remu- 
neration, regard  shall  be  had  to  the  average  weekly  amount 
which,  during  the  twelve  months  previous  to  the  accident, 
was  being  earned  by  a  person  in  the  same  grade  employed  at 
the  same  work  by  the  same  employer,  or,  if  there  is  no  person 
employed,  by  a  person  in  the  same  grade  employed  in  the 
same  class  of  employment  and  in  the  same  district.  (6)  Where 
the  workman  had  entered  into  concurrent  contracts  of  serv- 
ice with  two  or  more  employers  under  which  he  worked  at 
one  time  for  one  such  employer  and  at  another  time  for 
another  such  employer,  his  "earnings"  and  his  "average 
earnings"  shall  be  computed  as  if  his  earnings  under  all  such 
contracts  were  earnings  in  the  employment  of  the  employer 
for  whom  he  was  working  at  the  time  of  the  accident,  (c)  Em- 
ployment by  the  same  employer  shall  be  taken  to  mean  em- 
ployment by  the  same  employer  in  the  grade  in  which  the 
workman  was  employed  at  the  time  of  the  accident,  uninter- 
rupted by  his  absence  of  work  due  to  illness  or  any  other  un- 
avoidable cause,  (d)  Where  the  employer  has  been  accus- 
tomed to  pay  to  the  workman  a  sum  to  cover  any  special 
expenses  entailed  upon  him  by  the  nature  of  his  employment, 
the  sum  so  paid  shall  not  be  reckoned  as  part  of  the  earnings, 
(e)  In  fixing  the  amount  of  the  payment,  allowance  shall  be 
made  for  any  payment  or  benefit  which  the  workman  may 


922    Bradbury's  workmen's  compensation  law 

Kansas 

receive  from  the  employer  during  his  period  of  incapacity. 
(/)  In  the  case  of  partial  incapacity  the  payments  shall  be 
computed  to  equal,  as  closely  as  possible,  fifty  per  cent  of  the 
difference  between  the  amount  of  the  "average  earnings"  of 
the  workman  before  the  accident,  to  be  computed  as  herein 
provided,  and  the  average  amount  which  he  is  most  probably 
able  to  earn  in  some  suitable  employment  or  business  after 
the  accident,  subject,  however,  to  the  limitations  hereinbefore 
provided. 

PAYMENTS   TO   THE   INJURED   WORKMAN 

Sec.  13.  The  payments  shall  be  made  at  the  same  time, 
place  and  in  the  same  manner  as  the  wages  of  the  workman 
were  payable  at  the  time  of  the  accident,  but  a  judge  of  any 
district  court  having  jurisdiction  upon  the  application  of 
either  party  may  modify  such  regulation  in  a  particular  case 
as  to  him  may  seem  just. 

COMPENSATION    TO   DEPENDENTS,   ETC. 

Sec.  14.  Where  death  results  from  the  injury  and  the 
dependents  of  the  deceased  workman  as  herein  defined,  have 
agreed  to  accept  compensation,  and  the  amount  of  such  com- 
pensation and  the  apportionment  thereof  between  them  has 
been  agreed  to  or  otherwise  determined,  the  employer  may 
pay  such  compensation  to  them  accordingly  (or  to  an  ad- 
ministrator if  one  be  appointed)  and  thereupon  be  discharged 
from  all  further  liability  for  the  injury.  Where  only  the  ap- 
portionment of  the  agreed  compensation  between  the  depend- 
ents is  not  agreed  to,  the  employer  may  pay  the  amount  into 
any  district  court  having  jurisdiction  or  to  the  administrator 
of  the  deceased  workman,  with  the  same  effect.  Where  the 
compensation  has  been  so  paid  into  court  or  to  an  adminis- 
trator, the  proper  court,  upon  the  petition  of  such  adminis- 
trator or  any  of  such  dependents,  and  upon  such  notice  and 
proof  as  it  may  order  shall  determine  the  distribution  thereof 
among  such  dependents.     Where  there  are  no  dependents, 


TEXTS   OF   COMPENSATION   ACTS  923 

Kansas 

medical  and  funeral  expenses  may  be  paid  and  distributed  in 
like  manner. 

Sec.  15.  The  payments  due  under  this  act,  as  well  as  any 
judgment  obtained  thereunder,  shall  not  be  assignable  or  sub- 
ject to  levy,  execution  or  attachment,  except  for  medicine, 
medical  attention  and  nursing  and  no  claim  of  any  attorney 
at  law  for  services  rendered  in  securing  such  indemnity  or 
compensation  or  judgment  shall  be  an  enforceable  lien 
thereon,  unless  the  same  has  been  approved  in  writing  by  the 
judge  of  the  court  where  said  case  was  tried;  but  if  no  trial 
was  had,  then  by  any  judge  of  the  district  court  of  this  state 
to  whom  such  matter  has  been  regularly  submitted,  on  due 
notice  to  the  party  or  parties  in  interest  of  such  submission. 

REPORTS   AS   TO   ACCIDENTS   AND    COMPENSATION 

Sec.  16.  Employers  affected  by  this  act  shall  report  an- 
nually to  the  state  commissioner  and  factory  inspector  such 
reasonable  particulars  in  regard  thereto  as  he  may  require, 
including  particulars  as  to  all  releases  of  liability  under  this 
act  and  any  other  law.  The  penalty  for  failure  to  report  or 
for  false  report  shall  invalidate  any  such  release  of  liability. 

medical  examination 

Sec.  17.  (a)  After  an  injury  to  the  employ^,  if  so  requested 
by  his  employer,  the  employe  must  submit  himself  for  ex- 
amination at  some  reasonable  time  to  a  reputable  physician 
selected  by  the  employer,  and  from  time  to  time  thereafter 
during  the  pendency  of  his  claim  for  compensation,  or  during 
the  receipt  by  him  for  payment  under  this  act,  but  he  shall 
not  be  required  to  so  submit  himself,  more  than  once  in  two 
weeks  unless  in  accordance  with  such  orders  as  may  be  made 
by  the  proper  court  or  judge  thereof.  Either  party  may  upon 
demand  require  a  report  of  any  examination  made  by  the 
physician  of  the  other  party  upon  payment  of  a  fee  of  one 
dollar  therefor.  (6)  If  the  employe  requests  he  shall  be  en- 
titled to  have  a  physician  of  his  own  selection  present  at  the 


924    Bradbury's  workmen's  compensation  law 

Kansas 

time  to  participate  in  such  examinations,  (c)  Unless  there 
has  been  a  reasonable  opportunity  thereafter  for  such 
physician  selected  by  the  employe  to  participate  in  the  ex- 
amination in  the  presence  of  the  physician  selected  by  the 
employer,  the  physician  selected  by  the  employer  shall  not  be 
permitted  afterwards  to  give  evidence  of  the  condition  of  the 
employe  in  a  dispute  as  to  the  injury,  (d)  Except  as  pro- 
vided herein  in  this  act  there  shall  be  no  other  disqualification 
or  privilege  preventing  the  testimony  of  a  physician  who 
actually  makes  an  examination. 

MEDICAL   examination    BY   NEUTRAL   PHYSICIAN 

Sec.  18.  In  case  of  a  dispute  as  to  the  injury,  the  com- 
mittee, or  arbitrator  as  hereinafter  provided,  or  the  judge  of 
the  district  court  shall  have  the  power  to  employ  a  neutral 
physician  of  good  standing  and  ability,  whose  duty  it  shall 
be,  at  the  expense  of  the  parties  to  make  an  examination  of 
the  injured  person,  as  the  court  may  direct,  on  the  petition 
of  either  or  both  the  employer  and  employ^  or  dependents. 

TESTIMONY    BY   COURT   PHYSICIAN 

Sec.  19.  If  the  employer  or  the  employ^  has  a  physician 
make  such  an  examination  and  no  reasonable  opportunity 
is  given  to  the  other  party  to  have  his  physician  make  ex- 
amination, then,  in  case  of  a  dispute  as  to  the  injury,  the 
physician  of  the  party  making  such  examination  shall  not 
give  evidence  before  the  court  unless  a  neutral  physician 
either  has  examined  or  then  does  examine  the  injured  em- 
ploy6  and  give  testimony  regarding  the  injuries. 

refusal   of   medical   EXAMINATION 

Sec.  20.  If  the  employe  shall  refuse  examination  by 
physician  selected  by  the  employer,  with  the  presence  of  a 
physician  of  his  own  selection,  and  shall  refuse  an  examina- 
tion by  the  physician  appointed  by  the  court,  he  shall  have 
no  right  to  compensation  during  the  period  from  refusal  until 


TEXTS   OF   COMPENSATION   ACTS  925 

Kansas 

. . z 

he,  or  some  one  in  his  behalf,  notifies  the  employer  or  the 
court  that  he  is  willing  to  have  such  examination. 

CERTIFICATE   OF   PHYSICIAN 

Sec.  21.  A  physician  making  an  examination  shall  give  to 
the  employer  and  to  the  workman  a  certificate  as  to  the  con- 
dition of  the  workman,  but  such  certificate  shall  not  be  com- 
petent evidence  of  that  condition  unless  supported  by  his 
testimony  if  his  testimony  would  have  been  admissible. 

NOTICE    AND    CLAIM 

Sec.  22.  Proceedings  for  the  recovery  of  compensation 
under  this  act  shall  not  be  maintainable  unless  written  no- 
tice of  the  accident,  stating  the  time,  place,  and  particulars 
thereof,  and  the  name  and  address  of  the  person  injured,  has 
been  given  within  ten  days  after  the  accident,  and  unless  a 
claim  for  compensation  has  been  made  within  six  months 
after  the  accident,  or  in  case  of  death,  within  six  months 
from  the  date  thereof.  Such  notice  shall  be  delivered  by 
registered  mail,  or  by  delivery  to  the  employer.  The  want 
of,  or  any  defect  in  such  notice,  or  in  its  service,  shall  not  be 
a  bar  unless  the  employer  proves  that  he  has,  in  fact,  been 
thereby  prejudiced,  or  if  such  want  or  defect  was  occasioned 
by  mistake,  physical  or  mental  incapacity  or  other  reasonable 
cause,  and  the  failure  to  make  a  claim  within  the  period  above 
specified  shall  not  be  a  bar,  if  such  failure  was  occasioned  by 
a  mistake,  physical  or  mental  incapacity  or  other  reasonable 
cause. 

AGREEMENTS 

Sec.  23.  Compensation  due  under  this  act  may  be  settled 
by  agreement.  Every  such  agreement,  other  than  a  release, 
shall  be  in  the  form  hereinafter  provided. 

ARBITRATIONS 

Sec.  24.  If  compensation  be  not  so  settled  by  agreement: 
(a)  If  any  committee  representative  of  the  employer  and  the 


926    Bradbury's  workmen's  compensation  law 

Kansas 

workman  exists,  organized  for  the  purpose  of  settling  disputes 
under  this  act,  the  matter  shall,  unless  either  party  objects 
by  notice  in  writing  delivered  or  sent  by  registered  mail  to 
the  other  party  before  the  committee  meets  to  consider  the 
matter,  be  settled  in  accordance  with  its  rules  by  such  com- 
mittee or  by  an  arbitrator  selected  by  it.  (6)  If  either  party 
so  objects,  or  there  is  no  such  committee,  or  the  committee 
or  the  arbitrator  to  whom  it  refers  the  matter  fails  to  settle 
it  within  sixty  days  from  the  date  of  the  claim,  the  matter 
may  be  settled  by  a  single  arbitrator  agreed  on  by  the  parties, 
or  appointed  by  any  judge  of  a  court  where  an  action  might 
be  maintained.  The  consent  to  arbitration  shall  be  in  writing 
and  signed  by  the  parties  and  may  limit  the  fees  of  the  arbi- 
trator and  the  time  within  which  the  award  must  be  made. 
And  unless  such  consent  and  the  order  of  appointment  ex- 
pressly refers  other  questions,  only  the  question  of  the 
amount  of  compensation  shall  be  deemed  to  be  in  issue. 

THE   DUTIES   OF   ARBITRATOR 

Sec.  25.  The  arbitrator  shall  not  be  bound  by  technical 
rules  of  procedure  or  evidence,  but  shall  give  the  parties  rea- 
sonable opportunity  to  be  heard  and  act  reasonably  and  with- 
out partiality.  He  shall  make  and  file  his  award,  with  the 
consent  to  arbitration  attached  in  the  office  of  the  clerk  of  the 
proper  district  court  within  the  time  limited  in  the  consent, 
or  if  no  time  limit  is  fixed  therein,  within  sixty  days  after  his 
selection,  and  shall  give  notice  of  such  filing  to  the  parties  by 
mail. 

arbitrator's  fees 

Sec.  26.  The  arbitrator's  fees  shall  be  fixed  by  the  consent 
to  arbitration  or  be  agreed  to  by  the  parties  before  the  ar- 
bitration, and  if  not  so  fixed  or  agreed  to,  they  shall  not  ex- 
ceed $10.00  per  day,  for  not  to  exceed  ten  days,  and  dis- 
bursements for  expense.  The  arbitrator  shall  tax  or  appor- 
tion the  costs  of  such  fees  in  his  discretion  and  shall  add  the 


TEXTS   OF   COMPENSATION   ACTS  927 

Kansas 

amount  taxed  or  apportioned  against  the  employer  to  the 
first  payment  made  under  the  award,  and  he  shall  note  the 
amount  of  his  fees  on  the  award  and  shall  have  a  lien  therefor 
on  the  first  payments  due  under  the  award. 

FORM   OF   AGREEMENTS   AND   AWARD 

Sec.  27.  Every  agreement  for  compensation  and  every 
award  shall  be  in  writing,  signed  and  acknowledged  by  the 
parties  or  by  the  arbitrator  or  secretary  of  the  committee 
hereinbefore  referred  to,  and  shall  specify  the  amount  due 
and  unpaid  by  the  employer  to  the  workman  up  to  the  date 
of  the  agreement  or  award,  and  if  any,  the  amount  of  the 
payments  thereafter  to  be  paid  by  the  employer  to  the  work- 
man and  the  length  of  time  such  payments  shall  continue. 

FILING   AGREEMENTS,    AWARDS,    ETC. 

Sec.  28.  It  shall  be  the  duty  of  the  employer  to  file  or 
cause  to  be  filed  every  release  of  liability  hereunder,  every 
agreement  for  an  award  of  compensation,  or  modifying  an 
agreement  for  or  award  of  compensation,  under  this  act,  if 
not  filed  by  the  committee  or  arbitrator,  to  which  he  is  a 
party,  or  a  sworn  copy  thereof,  in  the  ofl&ce  of  the  district 
court  in  the  county  in  which  the  accident  occurred  within 
sixty  days  after  it  is  made,  otherwise  it  shall  be  void  as 
against  the  workman.  The  said  clerk  shall  accept,  receipt 
for,  and  file  any  such  release,  agreement  or  award,  without 
fee,  and  record  and  index  it  in  the  book  kept  for  that  purpose. 
Nothing  herein  shall  be  construed  to  prevent  the  workman 
from  filing  such  agreement  or  award. 

AGREEMENTS   AND   AWARDS — WHEN    CANCELED 

Sec.  29.  At  any  time  within  one  year  after  an  agreement 
or  award  has  been  so  filed,  a  judge  of  a  district  court  having 
jurisdiction  may,  upon  the  application  of  either  party,  cancel 
such  agreement  or  award,  upon  such  terms  as  may  be  just, 


92S    Bradbury's  workmen's  compensation  law 

Kansas 

if  it  be  shown  to  his  satisfaction  that  the  workman  has  re- 
turned to  work  and  is  earning  approximately  the  same  or 
higher  wages  as  or  than  he  did  before  the  accident,  or  that 
the  agreement  or  award  has  been  obtained  by  fraud  or  undue 
unfiuence,  or  that  the  committee  or  arbitrator  making  the 
award  acted  without  authority,  or  was  guihy  of  serious  mis- 
conduct, or  that  the  award  is  grossly  inadequate  or  grossly 
excessive,  or  if  the  employe  absents  himself  so  that  a  reason- 
able examination  of  his  condition  cannot  be  made,  or  has 
departed  beyond  the  boundaries  of  the  United  States  or 
Canada. 

staying  proceedings  upon  agreement  or  award 

Sec.  30.  At  any  time  after  the  filing  of  an  agreement  or 
award  and  before  judgment  has  been  granted  thereon,  the 
employer  may  stay  proceedings  thereon  by  filing  in  the 
office  of  the  clerk  of  the  district  court  wherein  such  agree- 
ments or  award  is  filed :  (a)  A  proper  certificate  of  a  qualified 
insurance  company  that  the  amount  of  the  compensation  to 
the  workman  is  insured  by  it :  (6)  A  proper  bond  undertaking 
to  secure  the  payment  of  the  compensation.  Such  certificate 
or  bond  shall  first  be  approved  by  a  judge  of  the  said  district 
court. 

JUDGMENT  UPON   AGREEMENT  OR  AWARD 

Sec.  31.  At  any  time  after  an  agreement  or  award  has 
been  filed,  the  workman  may  apply  to  the  said  district  court 
for  judgment  against  the  employer  for  a  lump  sum  equal  to 
eighty  per  cent  of  the  amount  of  payments  due  and  unpaid 
and  prospectively  due  under  the  agreement  or  award;  and, 
unless  the  agreement  or  award  be  stayed,  modified  or  can- 
celed, or  the  liability  thereunder  be  redeemed  or  otherwise 
discharged,  the  court  shall  examine  the  workman  under 
oath,  and  if  satisfied  that  the  application  is  made  because 
of  doubt  as  to  the  security  of  his  compensation,  shall  com- 


TEXTS   OF   COMPENSATION   ACTS  929 

Kansas 

pute  the  sum  and  direct  judgment  accordingly,  as  if  in  an 
action;  provided,  that  if  the  employer  shall  give  a  good  and 
sufficient  bond,  approved  by  the  court,  no  execution  shall 
issue  on  such  judgment  so  long  as  the  employer  continues  to 
make  payments  in  accordance  with  the  original  agreement 
or  award  undiminished  by  the  discount. 

REVIEW   OR  MODIFICATION   OF  AGREEMENT  OR  AWARD 

Sec.  32.  An  agreement  or  award  may  be  modified  at  any 
time  by  a  subsequent  agreement;  or,  at  any  time  after  one 
year  from  the  date  of  filing;  it  may  be  reviewed,  upon  the 
application  of  either  party  on  the  ground  that  the  incapacity 
of  the  workman  has  subsequently  increased  or  diminished. 
Such  application  shall  be  made  to  the  said  district  court; 
and,  unless  the  parties  consent  to  arbitration,  the  court 
may  appoint  a  medical  practitioner  to  examine  the  workman 
and  report  to  it;  and  upon  his  report  and  after  hearing  the 
evidence  of  the  parties,  the  court  may  modify  such  agreement 
or  award,  as  may  be  just,  by  ending,  increasing  or  diminishing 
the  compensation,  subject  to  the  limitations  hereinbefore 
provided. 

REDEMPTION   OF  LIABILITY 

Sec.  33.  Where  any  payment  has  been  continued  for  not 
less  than  six  months  the  liability  therefor  may  be  redeemed 
by  the  employer  by  the  payment  to  the  workman  of  a  lump 
sum  of  an  amount  equal  to  eighty  per  cent  of  the  payments 
which  may  become  due  according  to  the  award,  such  amount 
to  be  determined  by  agreement,  or,  in  default  thereof,  upon 
application,  to  a  judge  of  a  district  court  having  jurisdiction. 
Upon  paying  such  amount  the  employer  shall  be  discharged 
from  all  further  liability  on  account  of  the  injury,  and  be 
entitled  to  a  duly  executed  release,  upon  filing  which  or  other 
due  proof  of  payment,  the  liability  upon  any  agreement  or 
award  shall  be  discharged  of  record. 
59 


930    Bradbury's  workmen's  compensation  law 

Kansas 
INSURANCE 

Sec.  34.  Where  the  payment  of  compensation  to  the 
workman  is  insured,  by  a  pohcy  or  policies,  at  the  expense 
of  the  employer,  the  insurer  shall  be  subrogated  to  the 
rights  and  duties  under  this  act  of  the  employer,  so  far  as 
appropriate. 

COURTS 

Sec.  35.  All  references  hereinbefore  to  a  district  court 
of  the  state  of  Kansas  having  jurisdiction  of  a  civil  action 
between  the  parties  shall  be  construed  as  relating  to  the  then 
existing  code  of  civil  procedure.  Such  court  shall  make  all 
rules  necessary  and  appropriate  to  carry  out  the  provisions 
of  tl^is  act. 

ACTIONS 

Sec.  36.  A  workman's  right  to  compensation  under  this 
act,  may,  in  default  of  agreement  or  arbitration,  be  determined 
and  enforced  by  action  in  any  court  of  competent  juris- 
diction. In  every  such  action  the  right  to  trial  by  jury  shall 
be  deemed  waived  and  the  case  tried  by  the  court  without 
a  jury,  unless  either  party,  with  his  notice  of  trial,  or  when  the 
case  is  placed  upon  the  calendar — demand  a  jury  trial.  The 
judgment  in  the  action,  if  in  favor  of  the  plaintiff,  shall  be 
for  a  lump  sum  equal  to  the  amount  of  the  payments  then 
due  and  prospectively  due  under  this  act,  with  interest  on 
the  payments  overdue,  or,  in  the  discretion  of  the  trial  judge, 
for  periodical  payments  as  in  an  award.  Where  death 
results  from  injury,  the  action  shall  be  brought  by  the  de- 
pendent or  dependents  entitled  to  the  compensation  or  by 
the  legal  representative  of  the  deceased  for  the  benefit  of 
the  dependents  as  herein  defined;  and  in  such  action  the 
judgment  may  provide  for  the  proportion  of  the  award  to 
be  distributed  to  or  between  the  several  dependents;  other- 
wise such  proportions  shall  be  determined  by  the  proper 


TEXTS   OF   COMPENSATION   ACTS  981 

Kansas 

probate  court.  An  action  to  set  aside  a  release  or  other 
discharge  of  liabiHty  on  the  ground  of  fraud  or  mental  in- 
competency may  be  joined  with  an  action  of  compensation 
under  this  act.  No  action  or  proceeding  provided  for  in  this 
act  shall  be  brought  or  maintained  outside  of  the  state  of 
Kansas,  and  notice  thereof  may  be  given  by  publication 
against  nonresidents  of  the  state  in  the  manner  now  pro- 
vided by  article  7  of  Chapter  95,  General  Statutes  of  Kansas 
of  1909  so  far  as  the  same  may  be  applicable,  and  by  per- 
sonal service  of  a  true  copy  of  the  first  publication  within 
twenty-one  days  after  the  date  of  the  said  first  publication 
unless  excused  by  the  court  upon  proper  showing  that  such 
service  cannot  be  made. 

WHEN   THE   CAUSE   OF  ACTION  ACCRUES 

Sec.  37.  The  cause  of  action  shall  be  deemed  in  every 
case,  including  a  case  where  death  results  from  the  injury 
to  have  accrued  to  the  injured  workman  at  the  time  of  the 
accident;  and  the  time  limited  in  which  to  commence  an 
action  for  compensation  therefor  shall  run  as  against  him, 
his  legal  representatives  and  dependents  from  that  date. 

attorney's  liens 

Sec.  38.  Contingent  fees  of  attorneys  for  services  and 
proceedings  under  this  act  shall  in  every  case  be  subject  to 
approval  by  the  court. 

certificate  required 

Sec.  39.  If  the  superintendent  of  insurance  by  and  with 
the  advice  and  written  approval  of  the  attorney  general 
certifies  that  any  scheme  of  compensation,  benefit  or  insur- 
ance for  the  workman  of  an  employer  in  any  employment 
to  which  this  act  applies,  whether  or  not  such  scheme  in- 
cludes other  employers  and  their  workmen,  provides  scales 
of  compensation  not  less  favorable  to  the  workmen  and  their 


932    Bradbury's  workmen's  compensation  law 

Kansas 

dependents  than  the  corresponding  scales  contained  in  this 
act,  and  that,  where  the  scheme  provides  for  contributions 
by  the  workmen,  the  scheme  confers  benefits  at  least  equiva- 
lent to  those  contributions,  in  addition  to  the  benefits  to 
which  the  workmen  would  have  been  entitled  under  this 
act  or  their  equivalents  the  employer  may,  while  the  cer- 
tificate is  in  force,  contract  with  any  of  his  workmen  that 
the  provisions  of  the  scheme  shall  be  substituted  for  the 
provisions  of  this  act;  and  thereupon  the  employer  shall  be 
liable  only  in  accordance  with  that  scheme;  but,  save  as 
aforesaid,  this  act  shall  not  apply  notwithstanding  any 
contract  to  the  contrary  made  after  this  act  becomes  a  law. 

CONDITION   TO    CERTIFICATE 

Sec.  40.  No  scheme  shall  be  so  certified  which  does  not 
contain  suitable  provisions  for  the  equitable  distribution 
of  any  moneys  or  securities  held  for  the  purpose  of  the  scheme, 
after  due  provision  has  been  made  to  discharge  the  liabilities 
already  accrued,  if  and  when  such  certificate  is  revoked  or 
the  scheme  otherwise  terminated. 

CERTIFICATE  TO   BE    REVOCABLE 

Sec.  41.  If  at  any  time  the  scheme  no  longer  fulfills  the 
requirements  of  this  article,  or  is  not  fairly  administered,  or 
other  valid  and  substantial  reasons  therefor  exist,  the  superin- 
tendent of  insurance  by  and  with  the  attorney  general  shall 
revoke  the  certificate  and  the  scheme  shall  thereby  be 
terminated. 

INFORMATION   TO   BE   REPORTED 

Sec.  42.  Where  a  certified  scheme  is  in  effect  the  employer 
shall  answer  all  such  inquiries  and  furnish  all  such  accounts 
in  regard  thereto  as  may  be  required  by  the  superintendent. 

Sec.  43.  The  superintendent  of  insurance  may  make  all 
rules  and  regulations  necessary  to  carry  out  the  purposes  of 
the  four  preceding  sections. 


TEXTS   OF   COMPENSATION   ACTS  933 

Kansas 

Sec.  44.  All  employers  as  defined  by  this  act  who  shall 
elect  to  come  within  the  provisions  of  this  act  and  of  all  acts 
amendatory  hereof  shall  do  so  by  filing  a  statement  to  such 
effect  with  the  secretary  of  state  of  this  state  at  any  time 
after  taking  effect  of  this  act,  which  election  shall  be  binding 
upon  such  employer  for  the  term  of  one  year  from  the  date 
of  the  filing  of  such  statement,  and  thereafter,  without 
further  act  on  his  part,  for  successive  terms  of  one  year  each, 
unless  such  employer  shall,  at  least  sixty  days  prior  to  the 
expiration  of  such  first  or  of  any  succeeding  year,  file  in  the 
office  of  the  secretary  of  state  a  notice  in  writing  to  the  effect 
that  he  withdraws  his  election  to  be  subject  to  the  pro- 
visions of  this  act.  Notice  of  such  election  or  withdrawal 
shall  be  forthwith  posted  by  such  employer  in  conspicuous 
places  in  and  about  his  place  of  business. 

Sec.  45.  Every  employ^  entitled  to  come  within  the  pro- 
visions of  this  act,  shall  be  presumed  to  have  done  so  un- 
less he  serve  written  notice,  before  injury,  upon  his  em- 
ployer that  he  elects  not  to  accept  thereunder  and  thereafter 
any  such  employ^  desiring  to  change  his  election  shall  only 
do  so  by  serving  written  notice  thereof  upon  his  employer. 
Any  contract  wherein  an  employer  requires  of  an  employ^  as 
a  condition  of  employment  that  he  shall  elect  not  to  come 
within  the  provisions  of  this  act  shall  be  void. 

Sec.  46.  In  any  action  to  recover  damages  for  a  personal 
injury  sustained  within  this  state  by  an  employ 6  (entitled 
to  come  within  the  provisions  of  this  act)  while  engaged  in 
the  line  of  his  duty  as  such  or  for  death  resulting  from  personal 
injury  so  sustained,  in  which  recovery  is  sought  upon  the 
ground  of  want  of  due  care  of  the  employer  or  of  any  officer, 
agent  or  servant  of  the  employer,  where  such  employer  is 
within  the  provisions  hereof,  it  shall  not  be  a  defense  to  any 
employer  (as  herein  in  this  act  defined)  who  shall  not  have 
elected,  as  hereinbefore  provided,  to  come  within  the  pro- 
visions of  this  act:  (a)  That  the  employe  either  expressly  or 


934    Bradbury's  workmen's  compensation  law 

Kansas 

impliedly  assumed  the  risk  of  the  hazard  complained  of;  (b) 
that  the  injury  or  death  was  caused  in  whole  or  in  part  by  the 
want  of  due  care  of  a  fellow  servant;  (c)  that  such  employe 
was  guilty  of  contributory  negligence  but  such  contributory 
negligence  of  said  employe  shall  be  considered  by  the  jury 
in  assessing  the  amount  of  recovery. 

Sec.  47.  In  an  action  to  recover  damages  for  a  personal 
injury  sustained  within  this  state  by  an  employe  (entitled  to 
come  within  the  provisions  of  this  act)  while  engaged  in  the 
line  of  his  duty  as  such  or  for  death  resulting  from  personal 
injury  so  sustained  in  which  recovery  is  sought  upon  the 
ground  of  want  of  due  care  of  the  employer  or  of  any  officer, 
agent  or  servant  of  the  employer,  and  where  such  employer 
has  elected  to  come  and  is  within  the  provisions  of  this  act  as 
hereinbefore  provided,  it  shall  be  a  defense  for  such  employer 
in  all  cases  where  said  employe  has  elected  not  to  come 
within  the  provisions  of  this  act;  (a)  that  the  employ^ 
either  expressly  or  impliedly  assumed  the  risk  of  the  hazard 
complained  of;  (6)  that  the  injury  or  death  was  caused  in 
whole  or  in  part  by  the  want  of  due  care  of  a  fellow  servant; 
(c)  that  said  employ^  was  guilty  of  contributory  negligence; 
provided,  however,  that  none  of  these  defenses  shall  be 
available  where  the  injury  was  caused  by  the  willful  or  gross 
negligence  of  such  employer,  or  of  any  managing  officer,  or 
managing  agent  of  said  employer,  or  where  under  the  law 
existing  at  the  time  of  the  death  or  injury  such  defenses  are 
not  available. 

Sec.  48.  Nothing  in  this  act  shall  be  construed  to  amend 
or  repeal  section  6999  of  the  General  Statutes  of  Kansas  of 
1909  or  House  bill  No.  240  of  the  Session  of  1911,  the  same 
being  "An  act  relating  to  the  liability  of  common  carriers  by 
railroads  to  their  employes  in  certain  cases,  and  repealing  all 
acts  and  parts  of  acts  so  far  as  the  same  are  in  conflict  here^ 
with." 

Sec.  49.  This  act  shall  take  effect  and  be  in  force  from  and 


TEXTS  OF  COMPENSATION  ACTS  935 

Massachusetts 

after  its  publication  in  the  statute  book,  and  the  first  day  of 
January,  1912, 

MASSACHUSETTS 
(L.  1911,  c.  751,  as  amended  by  L.  1912,  c.  571) 

An  Act  relative  to  payments  to  employes  for  personal  in- 
juries received  in  the  course  of  their  employment  and  to  the 
prevention  of  such  injuries. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives 

in  General  Court  assembled,  and  by  the  authority  of  the 

same,  as  follows: 

Part  I 

MODIFICATION   OF  REMEDIES 

Section  1.  In  an  action  to  recover  damages  for  personal 
injury  sustained  by  an  employ^  in  the  course  of  his  employ- 
ment, or  for  death  resulting  from  personal  injury  so  sustained, 
it  shall  not  be  a  defense : 

1.  That  the  employ^  was  negligent; 

2.  That  the  injury  was  caused  by  the  negligence  of  a 
fellow  employ^; 

3.  That  the  employ^  had  assumed  the  risk  of  the  injury. 
Sec.  2.  The  provisions  of  section  one  shall  not  apply  to 

actions  to  recover  damages  for  personal  injuries  sustained  by 
domestic  servants  and  farm  laborers. 

Sec.  3.  The  provisions  of  section  one  shall  not  apply  to 
actions  to  recover  damages  for  personal  injuries  sustained  by 
employes  of  a  subscriber. 

Sec.  4.  The  provisions  of  sections  one  hundred  and 
twenty-seven  to  one  hundred  and  thirty-five,  inclusive,  and 
of  one  hundred  and  forty-one  to  one  hundred  and  forty-three, 
inclusive,  of  chapter  five  hundred  and  fourteen  of  the  acts  of 
the  year  nineteen  himdred  and  nine,  and  of  any  acts  in 


936    Bradbury's  workmen's  compensation  law 

Massachusetts 

amendment  thereof,  shall  not  apply  to  employes  of  a  sub- 
scriber while  this  act  is  in  effect. 

Sec.  5.  An  employ^  of  a  subscriber  shall  be  held  to  have 
waived  his  right  of  action  at  common  law  to  recover  damages 
for  personal  injuries  if  he  shall  not  have  given  his  employer 
at  the  time  of  his  contract  of  hire,  notice  in  writing  that  he 
claimed  such  right,  or  if  the  contract  of  hire  was  made  before 
the  employer  became  a  subscriber,  if  the  employ^  shall  not 
have  given  the  said  notice  within  thirty  days  of  notice  of  such 
subscription.  An  employ^  who  has  given  notice  to  his  em- 
ployer that  he  claimed  his  right  of  action  at  common  law  may 
waive  such  claim  by  a  notice  in  writing  which  shall  take  effect 
five  days  after  it  is  delivered  to  the  employer  or  his  agent. 
(Subject  to  approval  Industrial  Board.    L.  1912,  c.  666.) 

Part  II 

PAYMENTS 

Section  1.  If  an  employ^,  who  has  not  given  notice  of  his 
claim  of  common-law  rights  of  action,  as  provided  in  Part  I, 
section  five,  or  who  has  given  such  notice  and  has  waived 
the  same,  receives  a  personal  injury  arising  out  of  and  in  the 
course  of  his  employment,  he  shall  be  paid  compensation  by 
the  association,  as  hereinafter  provided,  if  his  employer  is  a 
subscriber  at  the  time  of  the  injury. 

Sec.  2.  If  the  employe  is  injured  by  reason  of  his  serious 
and  willful  misconduct,  he  shall  not  receive  compensation. 

Sec.  3.  If  the  employe  is  injured  by  reason  of  the  serious 
and  willful  misconduct  of  a  subscriber  or  of  any  person 
regularly  entrusted  with  and  exercising  the  powers  of  super- 
intendence, the  amounts  of  compensation  hereinafter  pro- 
vided shall  be  doubled.  In  such  case  the  subscriber  shall  re- 
pay to  the  association  the  extra  compensation  paid  to  the 
employe.  If  a  claim  is  made  under  this  section  the  sub- 
scriber shall  be  allowed  to  appear  and  defend  against  such 
claims  only. 


TEXTS   OF   COMPENSATION   ACTS  937 

Massachusetts 

Sec.  4.  No  compensation  shall  be  paid  under  this  act  for 
any  injury  which  does  not  incapacitate  the  employ^  for  a 
period  of  at  least  two  weeks  from  earning  full  wages,  but  if 
incapacity  extends  beyond  the  period  of  two  weeks,  compen- 
sation shall  begin  on  the  fifteenth  day  after  the  injury. 

Sec.  5.  During  the  first  two  weeks  after  the  injury,  the 
association  shall  furnish  reasonable  medical  and  hospital 
services,  and  medicines  when  they  are  needed. 

Sec.  6.  If  death  results  from  the  injury,  the  association 
shall  pay  the  dependents  of  the  employ^,  wholly  dependent 
upon  his  earnings  for  support  at  the  time  of  the  injury,  a 
weekly  payment  equal  to  one-half  his  average  weekly  wages, 
but  not  more  than  ten  dollars  nor  less  than  four  dollars  a 
week,  for  a  period  of  three  hundred  weeks  from  the  date  of 
the  injury.  If  the  employ^  leaves  dependents  only  partly 
dependent  upon  his  earnings  for  support  at  the  time  of  his 
injury,  the  association  shall  pay  such  dependents  a  weekly 
compensation  equal  to  the  same  proportion  of  the  weekly 
payments  for  the  benefit  of  persons  wholly  dependent  as  the 
amount  contributed  by  the  employ^  to  such  partial  depend- 
ents bears  to  the  annual  earnings  of  the  deceased  at  the  time 
of  his  injury.  When  weekly  payments  have  been  made  to  an 
injured  employe  before  his  death,  the  compensation  to  de- 
pendents shall  begin  from  the  date  of  the  last  of  such  pay- 
ments, but  shall  not  continue  more  than  three  hundred  weeks 
from  the  date  of  the  injury. 

Sec.  7.  The  following  persons  shall  be  conclusively  pre- 
sumed to  be  wholly  dependent  for  support  upon  a  deceased 
employ^ : 

(o)  A  wife  upon  a  husband  with  whom  she  lives  at  the  time 
of  his  death. 

(6)  A  husband  upon  a  wife  with  whom  he  lives  at  the  time 
of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or 
over  said  age,  but  physically  or  mentally  incapacitated  from 


938    bkadbury's  workmen's  compensation  law 

Massachusetts 

earning)  upon  the  parent  with  whom  he  is  or  they  are  Hving 
at  the  time  of  the  death  of  such  parent,  there  being  no  sur- 
viving dependent  parent.  In  case  there  is  more  than  one 
child  thus  dependent,  the  death  benefit  shall  be  divided 
equally  among  them. 

In  all  other  cases  questions  of  dependency,  in  whole  or  in 
part,  shall  be  determined  in  accordance  with  the  fact,  as  the 
fact  may  be  at  the  time  of  the  injury;  and  in  such  other 
cases,  if  there  is  more  than  one  person  wholly  dependent,  the 
death  benefit  shall  be  divided  equally  among  them,  and  per- 
sons partly  dependent,  if  any,  shall  receive  no  part  thereof; 
if  there  is  no  one  wholly  dependent  and  more  than  one  person 
partly  dependent,  the  death  benefit  shall  be  divided  among 
them  according  to  the  relative  extent  of  their  dependency. 

Sec.  8.  If  the  employ^  leaves  no  dependents,  the  associa- 
tion shall  pay  the  reasonable  expense  of  his  last  sickness  and 
burial,  which  shall  not  exceed  two  hundred  dollars. 

Sec.  9.  While  the  incapacity  for  work  resulting  from  the 
injury  is  total,  the  association  shall  pay  the  injured  employ^ 
a  weekly  compensation  equal  to  one-half  his  average  weekly 
wages,  but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by  such 
compensation  be  greater  than  five  hundred  weeks,  nor  the 
amount  more  than  three  thousand  dollars. 

Sec.  10.  While  the  incapacity  for  work  resulting  from  the 
injury  is  partial,  the  association  shall  pay  the  injured  em- 
ploy^ a  weekly  compensation  equal  to  one-half  the  difference 
between  his  average  weekly  wages  before  the  injury  and  the 
average  weekly  wages  which  he  is  able  to  earn  thereafter, 
but  not  more  than  ten  dollars  a  week ;  and  in  no  case  shall  the 
period  covered  by  such  compensation  be  greater  than  three 
hundred  weeks  from  the  date  of  the  injury. 

Sec.  11.  In  case  of  the  following  specified  injuries  the 
amounts  hereinafter  named  shall  be  paid  in  addition  to  all 
other  compensations: 


TEXTS   OF   COMPENSATION   ACTS  939 

Massachusetts 

(a)  For  the  loss  by  severance  of  both  hands  at  or  above  the 
wrist,  or  both  feet  at  or  above  the  ankle,  or  the  loss  of  one 
hand  and  one  foot,  or  the  reduction  to  one-tenth  of  normal 
vision  in  both  eyes  with  glasses,  one-half  of  the  average 
weekly  wages  of  the  injured  person,  but  not  more  than  ten 
dollars  nor  less  than  four  dollars  a  week,  for  a  period  of  one 
hundred  weeks. 

(6)  For  the  loss  by  severance  of  either  hand  at  or  above 
the  wrist,  or  either  foot  at  or  above  the  ankle,  or  the  reduc- 
tion to  one-tenth  of  normal  vision  in  either  eye  with  glasses, 
one-half  the  average  weekly  wages  of  the  injured  person, 
but  not  more  than  ten  dollars  nor  less  than  four  dollars  a 
week,  for  a  period  of  fifty  weeks. 

(c)  For  the  loss  by  severance  at  or  above  the  second  joint 
of  two  or  more  fingers,  including  thumbs,  or  toes,  one-half  the 
average  weekly  wages  of  the  injured  person,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period 
of  twenty-five  weeks. 

(d)  For  the  loss  by  severance  of  at  least  one  phalange  of  a 
finger,  thumb,  or  toe,  one-half  the  average  weekly  wages  of 
the  injured  person,  but  not  more  than  ten  dollars  nor  less  than 
four  dollars  a  week,  for  a  period  of  twelve  weeks. 

Sec.  12.  No  savings  or  insurance  of  the  injured  employ^, 
independent  of  this  act,  shall  be  taken  into  consideration  in 
determining  the  compensation  to  be  paid  hereunder,  nor 
shall  benefits  derived  from  any  other  source  than  the  associa- 
tion be  considered  in  fixing  the  compensation  under  this  act. 

Sec.  13.  The  compensation  payable  under  this  act  in  case 
of  the  death  of  the  injured  employ^  shall  be  paid  to  his  legal 
representative;  or,  if  he  has  no  legal  representative,  to  his 
dependents;  or,  if  he  leaves  no  dependents,  to  the  persons  to 
whom  payment  of  the  expenses  for  the  last  sickness  and  burial 
are  due.  If  the  payment  is  made  to  the  legal  representative  of 
the  deceased  employe,  it  shall  be  paid  by  him  to  the  de- 
pendents or  other  persons  entitled  thereto  under  this  act. 


940    Bradbury's  workmen's  compensation  law 

Massachusetts 

Sec.  14.  If  an  injured  employe  is  mentally  incompetent 
or  is  a  minor  at  the  time  when  any  right  or  privilege  accrues 
to  him  under  this  act,  his  guardian  or  next  friend  may  in  his 
behalf  claim  and  exercise  such  right  or  privilege. 

Sec.  15.  No  proceedings  for  compensation  for  an  injury 
under  this  act  shall  be  maintained  unless  a  notice  of  the 
injury  shall  have  been  given  to  the  association  or  subscriber 
as  soon  as  practicable  after  the  happening  thereof,  and  unless 
the  claim  for  compensation  with  respect  to  such  injury  shall 
have  been  made  within  six  months  after  the  occurrence  of 
the  same;  or,  in  case  of  the  death  of  the  employe,  or  in  the 
event  of  his  physical  or  mental  incapacity,  within  six  months 
after  death  or  the  removal  of  such  physical  or  mental  in- 
capacity. 

Sec.  16.  The  said  notice  shall  be  in  writing,  and  shall  state 
in  ordinary  language  the  time,  place  and  cause  of  the  injury; 
and  shall  be  signed  by  the  person  injured,  or  by  a  person  in 
his  behalf,  or,  in  the  event  of  his  death,  by  his  legal  repre- 
sentative or  by  a  person  in  his  behalf  or  by  a  person  to  whom 
payments  may  be  due  under  this  act  or  by  a  person  in  his 
behalf.  Any  form  of  written  communication  signed  by  any 
person  who  may  give  the  notice  as  above  provided,  which 
contains  the  information  that  the  person  has  been  so  injured, 
giving  the  time,  place  and  cause  of  the  injury,  shall  be  con- 
sidered a  sufficient  notice. 

Sec.  17.  The  notice  shall  be  served  upon  the  association, 
or  an  officer  or  agent  thereof,  or  upon  the  subscriber,  or  upon 
one  subscriber,  if  there  are  more  subscribers  than  one,  or 
upon  any  officer  or  agent  of  a  corporation  if  the  subscriber  is 
a  corporation,  by  delivering  the  same  to  the  person  on  whom 
it  is  to  be  served,  or  leaving  it  at  his  residence  or  place  of 
business,  or  by  sending  it  by  registered  mail  addressed  to  the 
person  or  corporation  on  whom  it  is  to  be  served,  at  his  last 
known  residence  or  place  of  business. 

Sec.  18.  A  notice  given  under  the  provisions  of  this  act 


TEXTS  OF   COMPENSATION   ACTS  941 


Massachusetts 


shall  not  be  held  invalid  or  insufficient  by  reason  of  any  in- 
accuracy in  stating  the  time,  place  or  cause  of  the  injury, 
unless  it  is  shown  that  it  was  the  intention  to  mislead  and  the 
association  was  in  fact  misled  thereby.  Want  of  notice  shall 
not  be  a  bar  to  proceedings  under  this  act,  if  it  be  shown  that 
the  association,  subscriber,  or  agent  had  knowledge  of  the 
injury. 

Sec.  19.  After  an  employe  has  received  an  injury,  and 
from  time  to  time  thereafter  during  the  continuance  of  his 
disability  he  shall,  if  so  requested  by  the  association  or  sub- 
scriber, submit  himself  to  an  examination  by  a  physician  or 
surgeon  authorized  to  practice  medicine  under  the  laws  of 
the  commonwealth,  furnished  and  paid  for  by  the  associa- 
tion or  subscriber.  The  employe  shall  have  the  right  to  have 
a  physician  provided  and  paid  for  by  himself  present  at  the 
examination.  If  he  refuses  to  submit  himself  for  the  exami- 
nation, or  in  any  way  obstructs  the  same,  his  right  to  com- 
pensation shall  be  suspended,  and  his  compensation  during 
the  period  of  suspension  may  be  forfeited. 

Sec.  20.  No  agreement  by  an  employe  to  waive  his  rights 
to  compensation  under  this  act  shall  be  valid. 

Sec.  21.  No  payment  under  this  act  shall  be  assignable  or 
subject  to  attachment,  or  be  liable  in  any  way  for  any  debts. 

Sec.  22.  Whenever  any  weekly  payment  has  been  con- 
tinued for  not  less  than  six  months,  the  liability  therefor  may 
in  unusual  cases  be  redeemed  by  the  payment  of  a  lump  sum 
by  agreement  of  the  parties,  subject  to  the  approval  of  the 
industrial  accident  board. 

Sec.  23.  The  claim  for  compensation  shall  be  in  writing 
and  shall  state  the  time,  place,  cause  and  nature  of  the  in- 
jury; it  shall  be  signed  by  the  person  injured  or  by  a  person 
in  his  behalf,  or,  in  the  event  of  his  death,  by  his  legal  repre- 
sentative or  by  a  person  in  his  behalf,  or  by  a  person  to  whom 
payments  may  be  due  under  this  act  or  by  a  person  in  his 
behalf,  and  shall  be  filed  with  the  industrial  accident  board. 


942    Bradbury's  workmen's  compensation  law 

Massachusetts 

The  failure  to  make  a  claim  within  the  period  prescribed  by 
section  fifteen  shall  not  be  a  bar  to  the  maintenance  of  pro- 
ceedings under  this  act  if  it  is  found  that  it  was  occasioned 
by  mistake  or  other  reasonable  cause. 

Part  III 

PROCEDURE 

Section  1.  There  shall  be  an  industrial  accident  board 
consisting  of  five  members,  to  be  appointed  by  the  governor, 
by  and  with  the  advice  and  consent  of  the  council,  one  of 
whom  shall  be  designated  by  the  governor  as  chairman. 
The  term  of  office  of  members  of  this  board  shall  be  five 
years,  except  than  when  first  constituted  one  member  shall 
be  appointed  for  one  year,  one  for  two  years,  one  for  three 
years,  one  for  four  years,  and  one  for  five  years.  Thereafter 
one  member  shall  be  appointed  every  year  for  the  full  term 
of  five  years. 

Sec.  2.  The  salaries  and  expenses  of  the  board  shall  be 
paid  by  the  commonwealth.  The  salary  of  the  chairman 
shall  be  five  thousand  dollars  a  year,  and  the  salary  of  the 
other  members  shall  be  forty-five  hundred  dollars  a  year 
each.  The  board  may  appoint  a  secretary  at  a  salary  of  not 
more  than  three  thousand  dollars  a  year,  and  may  remove  him. 
It  shall  also  be  allowed  an  annual  sum,  not  exceeding  ten  thou- 
sand dollars,  for  clerical  service,  and  traveling  and  other 
necessary  expenses.  The  board  shall  be  provided  with  an 
office  in  the  state  house  or  in  some  other  suitable  building  in 
the  city  of  Boston,  in  which  its  records  shall  be  kept. 

Sec.  3.  The  board  may  make  rules  not  inconsistent  with 
this  act  for  carrying  out  the  provisions  of  the  act.  Process 
and  procedure  under  this  act  shall  be  as  summary  as  reason- 
ably may  be.  The  board  or  any  member  thereof  shall  have 
the  power  to  subpoena  witnesses,  administer  oaths  and  to 
examine  such  parts  of  the  books  and  records  of  the  parties 
to  a  proceeding  as  relate  to  questions  in  dispute.    The  fees 


TEXTS   OF   COMPENSATION   ACTS  943 

Massachusetts 

for  attending  as  a  witness  before  the  industrial  accident 
board  shall  be  one  dollar  and  fifty  cents  a  day;  for  attending 
before  an  arbitration  committee  fifty  cents  a  day;  in  both 
cases  five  cents  a  mile  for  travel  out  and  home. 

The  superior  court  shall  have  power  to  enforce  by  proper 
proceedings  the  provisions  of  this  section  relating  to  the 
attendance  and  testimony  of  witnesses  and  the  examination 
of  books  and  records. 

Sec.  4.  If  the  association  and  the  injured  employ^  reach 
an  agreement  in  regard  to  compensation  under  this  act,  a 
memorandum  of  the  agreement  shall  be  filed  with  the  in- 
dustrial accident  board  and,  if  approved  by  it,  thereupon  the 
memorandum  shall  for  all  purposes  be  enforceable  under  the 
provisions  of  Part  III,  section  eleven.  Such  agreements  shall 
be  approved  by  said  board  only  when  the  terms  conform  to 
the  provisions  of  this  act. 

Sec.  5.  If  the  association  and  the  injured  employe  fail  to 
reach  an  agreement  in  regard  to  compensation  under  this 
act,  either  party  may  notify  the  industrial  accident  board 
who  shall  thereupon  call  for  the  formation  of  a  committee  of 
arbitration.  The  committee  of  arbitration  shall  consist  of 
three  members,  one  of  whom  shall  be  a  member  of  the  in- 
dustrial accident  board  and  shall  act  as  chairman.  The  other 
two  members  shall  be  named,  respectively,  by  the  two 
parties.  If  the  subscriber  has  appeared  under  the  provi- 
sions of  Part  II,  section  three,  the  member  named  by  the 
association  shall  be  subject  to  his  approval.  If  a  vacancy 
occurs  it  shall  be  filled  by  the  party  whose  representative  is 
unable  to  act. 

The  arbitrators  appointed  by  the  parties  shall  be  sworn 
by  the  chairman  as  follows :  I  do  solemnly  swear  that 

I  will  faithfully  perform  my  duty  as  arbitrator  and  will  not 
be  influenced  in  my  decision  by  any  feeling  of  friendship  or 
partiality  toward  either  party.    So  help  me  God. 

Sec.  6.  It  shall  be  the  duty  of  the  industrial  accident 


944    Bradbury's  workmen's  compensation  1x\w 

Massachusetts 

board,  upon  notification  that  the  parties  have  failed  to  reach 
an  agreement,  to  request  both  parties  to  appoint  their  re- 
spective representatives  on  the  committee  of  arbitration. 
The  board  shall  designate  one  of  its  members  to  act  as  chair- 
man, and,  if  either  party  does  not  appoint  its  members  on 
this  committee  within  seven  days  after  notification,  as  above 
provided,  or  after  a  vacancy  has  occurred,  the  board  or  any 
member  thereof  shall  fill  the  vacancy  and  notify  the  parties 
to  that  effect. 

Sec.  7.  The  committee  on  arbitration  shall  make  such 
inquiries  and  investigations  as  it  shall  deem  necessary.  The 
hearings  of  the  committee  shall  be  held  at  the  city  or  town 
where  the  injury  occurred,  and  the  decision  of  the  committee, 
together  with  a  statement  of  the  evidence  submitted  before 
it,  its  findings  of  fact,  rulings  of  law  and  any  other  matters 
pertinent  to  questions  arising  before  it  shall  be  filed  with 
the  industrial  accident  board.  Unless  a  claim  for  a  review  is 
filed  by  either  party  within  seven  days,  the  decision  shall  be 
enforceable  under  the  provisions  of  Part  III,  section  eleven. 

Sec.  8.  The  industrial  accident  board  or  any  member 
thereof  may  appoint  a  duly  qualified  impartial  physician  to 
examine  the  injured  employe  and  to  report.  The  fee  for  this 
service  shall  be  five  dollars  and  traveling  expenses,  but  the 
board  may  allow  additional  reasonable  amounts  in  extraor- 
dinary cases. 

Sec.  9.  The  arbitrators  named  by  or  for  the  parties  to  the 
dispute  shall  each  receive  five  dollars  as  a  fee  for  his  services, 
but  the  industrial  accident  board  or  any  member  thereof 
may  allow  additional  reasonable  amounts  in  extraordinary 
cases.  The  fees  shall  be  paid  by  the  association,  which  shall 
deduct  an  amount  equal  to  one-third  of  the  sum  from  any 
compensation  found  due  the  employ^. 

Sec.  10.  If  a  claim  for  a  review  is  filed,  as  provided  in 
Part  III,  section  seven,  the  board  shall  hear  the  parties  and 
may  hear  evidence  in  regard  to  any  or  all  matters  pertinent 


TEXTS   OF   COMPENSATION   ACTS  945 

Massachusetts 

thereto  and  may  revise  the  decision  of  the  committee  in 
whole  or  in  part,  or  may  refer  the  matter  back  to  the  com- 
mittee for  further  findings  of  fact,  and  shall  file  its  decision 
with  the  records  of  the  proceedings  and  notify  the  parties 
thereof.  No  party  shall  as  a  matter  of  right  be  entitled  to  a 
second  hearing  on  any  question  of  fact. 

Sec.  11.  Any  party  in  interest  may  present  certified 
copies  of  an  order  or  decision  of  the  board,  a  decision  of  an 
'arbitration  committee  from  which  no  claim  for  review  has 
been  filed  within  the  time  allowed  therefor,  or  a  memorandum 
of  agreement  approved  by  the  board,  and  all  papers  in  con- 
nection therewith,  to  the  superior  court  for  the  county  in 
which  the  injury  occurred  or  for  the  county  of  Suffolk, 
whereupon  said  court  shall  render  a  decree  in  accordance 
therewith  and  notify  the  parties.  Such  decree  shall  have 
the  same  effect  and  all  proceedings  in  relation  thereto  shall 
thereafter  be  the  same  as  though  duly  rendered  in  a  suit 
duly  heard  and  determined  by  said  court,  except  that  there 
shall  be  no  appeal  therefrom  upon  questions  of  fact,  or 
where  the  decree  is  based  upon  a  decision  of  an  arbitration 
committee  or  a  memorandum  of  agreement,  and  that  there 
shall  be  no  appeal  from  a  decree  based  upon  an  order  or 
decision  of  the  board  which  has  not  been  presented  to  the 
court  within  ten  days  after  the  notice  of  the  filing  thereof  by 
the  board.  Upon  the  presentation  to  it  of  a  certified  copy 
of  a  decision  of  the  industrial  accident  board  ending,  di- 
minishing or  increasing  a  weekly  payment  under  the  pro- 
visions of  Part  III,  section  twelve,  the  court  shall  revoke  or 
modify  the  decree  to  conform  to  such  decision. 

Sec.  12.  Any  weekly  payment  under  this  act  may  be  re- 
viewed by  the  industrial  accident  board  at  the  request  of  the 
association  or  of  the  employe ;  and  on  such  review  it  may  be 
ended,  diminished  or  increased,  subject  to  the  maximum  and 
minimum  amounts  above  provided,  if  the  board  finds  that 
the  condition  of  the  employ^  warrants  such  action. 
60 


946    Bradbury's  workmen's  compensation  law 

Massachusetts 

Sec.  13.  Fees  of  attorneys  and  physicians  for  services 
under  this  act  shall  be  subject  to  the  approval  of  the  indus- 
trial accident  board. 

Sec.  14.  If  the  committee  of  arbitration,  industrial  acci- 
dent board,  or  any  court  before  whom  any  proceedings  are 
brought  under  this  act  determines  that  such  proceedings 
have  been  brought,  prosecuted,  or  defended  without  reason- 
able ground,  it  shall  assess  the  whole  cost  of  the  proceedings 
upon  the  party  who  has  so  brought,  prosecuted  or  defended 
them. 

Sec.  15.  Where  the  injury  for  which  compensation  is 
payable  under  this  act  was  caused  under  circumstances 
creating  a  legal  liability  in  some  person  other  than  the  sub- 
scriber to  pay  damages  in  respect  thereof,  the  employe  may 
at  his  option  proceed  either  at  law  against  that  person  to  re- 
cover damages,  or  against  the  association  for  compensation 
under  this  act,  but  not  against  both;  and  if  compensation  be 
paid  under  this  act,  the  association  may  enforce  in  the  name 
of  the  employe,  or  in  its  own  name  and  for  its  own  benefit,  the 
liability  of  such  other  person. 

Sec.  16.  All  questions  arising  under  this  act,  if  not  settled 
by  agreement  by  the  parties  interested  therein,  shall,  except 
as  otherwise  herein  provided,  be  determined  by  the  industrial 
accident  board.  The  decisions  of  the  industrial  accident 
board  shall  for  all  purposes  be  enforceable  under  the  provi- 
sions of  Part  III,  section  eleven. 

Sec.  17.  If  a  subscriber  enters  into  a  contract,  written  or 
oral,  with  an  independent  contractor  to  do  such  subscriber's 
work,  or  if  such  a  contractor  enters  into  a  contract  with  a 
subcontractor  to  do  all  or  any  part  of  the  work  comprised  in 
such  contract  with  the  subscriber,  and  the  association  would, 
if  such  work  were  executed  by  employes  immediately  em- 
ployed by  the  subscriber,  be  liable  to  pay  compensation  under 
this  act  to  those  employes,  the  association  shall  pay  to  such 
employes  any  compensation  which  would  be  payable  to 


TEXTS   OF   COMPENSATION   ACTS  947 


Massachusetts 


them  under  this  act  if  the  independent  or  subcontractors 
were  subscribers.  The  association,  however,  shall  be  en- 
titled to  recover  indemnity  from  any  other  person  who  would 
have  been  liable  to  such  employes  independently  of  this 
section,  and  if  the  association  has  paid  compensation  under 
the  terms  of  this  section,  it  may  enforce  in  the  name  of  the 
employ^,  or  in  its  own  name  and  for  the  benefit  of  the  asso- 
ciation, the  liability  of  such  other  person.  This  section  shall 
not  apply  to  any  contract  of  an  independent  or  subcontractor 
which  is  merely  ancillary  and  incidental  to,  and  is  no  part  of 
or  process  in,  the  trade  or  business  carried  on  by  the  sub- 
scriber, nor  to  any  case  where  the  injury  occurred  elsewhere 
than  on,  in,  or  about  the  premises  on  which  the  contractor 
has  undertaken  to  execute  the  work  for  the  subscriber  or 
which  are  under  the  control  or  management  of  the  subscriber. 
Sec.  18.  Every  employer  shall  hereafter  keep  a  record  of 
all  injuries,  fatal  or  otherwise,  received  by  his  employes  in 
the  course  of  their  employment.  Within  forty-eight  hours, 
not  counting  Sundays  and  legal  holidays,  after  the  occurrence 
of  an  accident  resulting  in  personal  injury  a  report  thereof 
shall  be  made  in  writing  to  the  industrial  accident  board  on 
blanks  to  be  procured  from  the  board  for  the  purpose.  Upon 
the  termination  of  the  disability  of  the  injured  employe  or, 
if  such  disability  extends  beyond  a  period  of  sixty  days,  at 
the  expiration  of  such  period,  the  employer  shall  make  a 
supplemental  report  on  blanks  to  be  procured  from  the  board 
for  that  purpose.  The  said  reports  shall  contain  the  name 
and  nature  of  the  business  of  the  employer,  the  location  of 
the  establishment,  the  name,  age,  sex  and  occupation  of  the 
injured  employe,  and  shall  state  the  date  and  hour  of  the 
accident,  the  nature  and  cause  of  the  injury,  and  such  other 
information  as  may  be  required  by  the  board.  Any  employer 
who  refuses  or  neglects  to  make  the  report  required  by  this 
section  shall  be  punished  by  a  fine  of  not  more  than  fifty 
dollars  for  each  offence. 


948    Bradbury's  workmen's  compensation  law 

Massachusetts 
Part  IV 

THE   MASSACHUSETTS   EMPLOYils'    INSURANCE   ASSOCIATION 

Section  1.  The  Massachusetts  Employes'  Insurance  As- 
sociation is  hereby  created  a  body  corporate  with  the  powers 
provided  in  this  act,  and  with  all  the  general  corporate  powers 
incident  thereto. 

Sec.  2.  The  governor  shall  appoint  a  board  of  directors  of 
the  association,  consisting  of  fifteen  members,  who  shall  serve 
for  a  term  of  one  year,  or  until  their  successors  are  elected  by 
ballot  by  the  subscribers  at  such  time  and  for  such  term  as 
the  by-laws  shall  provide. 

Sec.  3.  Until  the  first  meeting  of  the  subscribers  the  board 
of  directors  shall  have  and  exercise  all  the  powers  of  the 
subscribers,  and  may  adopt  by-laws  not  inconsistent  with 
the  provisions  of  this  act,  which  shall  be  in  effect  until 
amended  or  repealed  by  the  subscribers. 

Sec.  4.  The  board  of  directors  shall  annually  choose  by 
ballot  a  president,  who  shall  be  a  member  of  the  board,  a 
secretary,  a  treasurer,  and  such  other  officers  as  the  by-laws 
shall  provide. 

Sec.  5.  Seven  or  more  of  the  directors  shall  constitute  a 
quorum  for  the  transaction  of  business. 

Vacancies  in  any  office  may  be  filled  in  such  manner  as  the 
by-laws  shall  provide. 

Sec.  6.  Any  employer  in  the  commonwealth  may  become 
a  subscriber. 

Sec.  7.  The  board  of  directors  shall,  within  thirty  days  of 
the  subscription  of  twenty-five  employers,  call  the  first  meet- 
ing of  the  subscribers  by  a  notice  in  writing  mailed  to  each 
subscriber  at  his  place  of  business  not  less  than  ten  days  be- 
fore the  date  fixed  for  the  meeting. 

Sec.  8.  In  any  meeting  of  the  subscribers  each  subscriber 
shall  be  entitled  to  one  vote,  and  if  a  subscriber  has  five 
hundred  employes  to  whom  the  association  is  bound  to  pay 


TEXTS   OF   COMPENSATION  ACTS  949 

Massachusetts 

compensation  he  shall  be  entitled  to  two  votes,  and  he  shall 
be  entitled  to  one  additional  vote  for  each  additional  five 
hundred  employes  to  whom  the  association  is  bound  to  pay 
compensation,  but  no  subscriber  shall  cast,  by  his  own  right 
or  by  the  right  of  proxy,  more  than  twenty  votes. 

Sec.  9.  No  policy  shall  be  issued  by  the  association  until 
not  less  than  one  hundred  employers  have  subscribed,  who 
have  not  less  than  ten  thousand  employes  to  whom  the  asso- 
ciation may  be  bound  to  pay  compensation. 

Sec.  10.  No  policy  shall  be  issued  until  a  list  of  the  sub- 
scribers, with  the  number  of  employes  of  each,  together  with 
such  other  information  as  the  insurance  commissioner  may 
require,  shall  have  been  filed  at  the  insurance  department, 
nor  until  the  president  and  secretary  of  the  association  shall 
have  certified  under  oath  that  every  subscription  in  the  list 
so  filed  is  genuine  and  made  with  an  agreement  by  every 
subscriber  that  he  will  take  the  policies  subscribed  for  by 
him  within  thirty  days  of  the  granting  of  a  license  to  the 
association  by  the  insurance  commissioner  to  issue  policies. 

Sec.  11.  If  the  number  of  subscribers  falls  below  one 
hundred,  or  the  number  of  employes  to  whom  the  association 
may  be  bound  to  pay  compensation  falls  below  ten  thousand, 
no  further  policies  shall  be  issued  until  other  employers  have 
subscribed  who,  together  with  existing  subscribers,  amount 
to  not  less  than  one  hundred  who  have  not  less  than  ten 
thousand  employes,  said  subscriptions  to  be  subject  to  the 
provisions  contained  in  the  preceding  section. 

Sec.  12.  Upon  the  filing  of  the  certificate  provided  for  in 
the  two  preceding  sections  the  insurance  commissioner  shall 
make  such  investigation  as  he  may  deem  proper  and,  if  his 
findings  warrant  it,  grant  a  license  to  the  association  to  issue 
policies. 

Sec.  13.  The  board  of  directors  shall  distribute  the  sub- 
scribers into  groups  in  accordance  with  the  nature  of  the 
business  and  the  degree  of  the  risk  of  injury.     Subscribers 


950    Bradbury's  workmen's  compensation  law 

Massachusetts 


within  each  group  shall  annually  pay  in  cash,  or  notes  ab- 
solutely payable,  such  premiums  as  may  be  required  to  pay 
the  compensation  herein  provided  for  the  injuries  which 
may  occur  in  that  year. 

Sec.  14,  The  association  may  in  its  by-laws  and  policies 
fix  the  contingent  mutual  liability  of  the  subscribers  for  the 
payment  of  losses  and  expenses  not  provided  for  by  its  cash 
funds;  but  such  contingent  liability  of  a  subscriber  shall  not 
be  less  than  an  amount  equal  to  and  in  addition  to  the  cash 
premium. 

Sec.  15.  If  the  association  is  not  possessed  of  cash  funds 
above  its  unearned  premiums  sufficient  for  the  payment  of 
incurred  losses  and  expenses,  it  shall  make  an  assessment 
for  the  amount  needed  to  pay  such  losses  and  expenses  upon 
the  subscribers  liable  to  assessment  therefor  in  proportion 
to  their  several  liability.  Every  subscriber  shall  pay  his  pro- 
portional part  of  any  assessments  which  may  be  laid  by  the 
association,  in  accordance  with  law  and  his  contract,  on  ac- 
count of  injuries  sustained  and  expenses  incurred  while  he  is 
a  subscriber. 

Sec.  16.  The  board  of  directors  may,  from  time  to  time, 
by  vote  fix  and  determine  the  amount  to  be  paid  as  a  dividend 
upon  policies  expiring  during  each  year  after  retaining  suffi- 
cient sums  to  pay  all  the  compensation  which  may  be  payable 
on  account  of  injuries  sustained  and  expenses  incurred.  All 
premiums,  assessments,  and  dividends  shall  be  fixed  by  and 
for  groups  as  heretofore  provided  in  accordance  with  the  expe- 
rience of  each  group,  but  all  the  funds  of  the  association  and 
the  contingent  liability  of  all  the  subscribers  shall  be  avail- 
able for  the  payment  of  any  claim  against  the  association. 

Sec.  17.  Any  proposed  premium,  assessment,  dividend 
or  distribution  of  subscribers  shall  be  filed  with  the  insurance 
department  and  shall  not  take  effect  until  approved  by  the 
insurance  commissioner  after  such  investigation  as  he  may 
deem  necessary.    (May  withdraw  approval.    L.  1912,  c.  666.) 


TEXTS  OF  COMPENSATION  ACTS        951 

Massachusetts 

Sec.  18.  The  board  of  directors  shall  make  and  enforce 
reasonable  rules  and  regulations  for  the  prevention  of  in- 
juries on  the  premises  of  subscribers,  and  for  this  purpose 
the  inspectors  of  the  association  shall  have  free  access  to  all 
such  premises  during  regular  working  hours.  Any  subscriber 
or  employ^  aggrieved  by  any  such  rule  or  regulation  may 
petition  the  industrial  accident  board  for  a  review,  and  it 
may  affirm,  amend,  or  annul  the  rule  or  regulation. 

Sec.  19.  If  any  officer  of  the  association  shall  falsely  make 
oath  to  any  certificate  required  to  be  filed  with  the  insurance 
commissioner,  he  shall  be  guilty  of  perjury. 

Sec.  20.  Every  subscriber  shall,  as  soon  as  he  secures  a 
policy,  give  notice,  in  writing  or  print,  to  all  persons  under 
contract  of  hire  with  him  that  he  has  provided  for  payment 
to  injured  employes  by  the  association. 

Sec.  21.  Every  subscriber  shall  give  notice  in  writing 
or  print  to  every  person  with  whom  he  is  about  to  enter 
into  a  contract  of  hire  that  he  has  provided  for  payment 
to  injured  employes  by  the  association.  If  an  employer 
ceases  to  be  a  subscriber  he  shall,  on  or  before  the  day  on 
which  his  policy  expires,  give  notice  thereof  in  writing  or 
print  to  all  persons  under  contract  with  him.  In  case  of  the 
renewal  of  the  policy  no  notice  shall  be  required  under  the 
provisions  of  this  act.  He  shall  file  a  copy  of  said  notice 
with  the  Industrial  Accident  Board.  The  notices  required 
by  this  and  the  preceding  section  may  be  given  in  the  man- 
ner therein  provided  or  in  such  other  manner  as  may  be  ap- 
proved by  the  Industrial  Accident  Board. 

Sec.  22.  If  a  subscriber,  who  has  complied  with  all  the 
rules,  regulations  and  demands  of  the  association,  is  required 
by  any  judgment  of  a  court  of  law  to  pay  to  an  employ^  any 
damages  on  account  of  personal  injury  sustained  by  such 
employ^  during  the  period  of  subscription,  the  association 
shall  pay  to  the  subscriber  the  full  amount  of  such  judgment 
and  the  cost  assessed  therewith,  if  the  subscriber  shall  have 


952    Bradbury's  workmen's  compensation  law 

Massachusetts 

given  the  association  notice  in  writing  of  the  bringing  of  the 
action  upon  which  the  judgment  was  recovered  and  an  oppor- 
tunity to  appear  and  defend  the  same. 

Sec.  23.  The  provisions  of  chapter  five  hundred  and 
seventy-six  of  the  acts  of  the  year  nineteen  hundred  and 
seven  and  of  acts  in  amendment  thereof  shall  apply  to  the 
association,  so  far  as  such  provisions  are  pertinent  and  not 
in  conflict  with  the  provisions  of  this  act,  except  that  the 
corporate  powers  shall  not  expire  because  of  failure  to  issue 
policies  or  make  insurance. 

Sec.  24.  The  board  of  directors  appointed  by  the  governor 
under  the  provisions  of  Part  IV,  section  two,  may  incur  such 
expenses  in  the  performance  of  its  duties  as  shall  be  approved 
by  the  governor  and  council.  Such  expenses  shall  be  paid 
from  the  treasury  of  the  commonwealth  and  shall  not  exceed 
in  amount  the  sum  of  fifteen  thousand  dollars. 

Part  V 

MISCELLANEOUS   PROVISIONS 

Section  1.  If  an  employ^  of  a  subscriber  files  any  claim 
with  or  accepts  any  payment  from  the  association  on  account 
of  personal  injury,  or  makes  any  agreement,  or  submits  any 
question  to  arbitration,  under  this  act,  such  action  shall 
constitute  a  release  to  the  subscriber  of  all  claims  or  demands 
at  law,  if  any,  arising  from  the  injury. 

Sec.  2.  The  following  words  and  phrases,  as  used  in  this 
act,  shall,  unless  a  different  meaning  is  plainly  required  by 
the  context,  have  the  following  meaning: — ** Employer"  shall 
include  the  legal  representative  of  a  deceased  employer. 
"Employ 6  shall  include  every  person  in  the  service  of  an- 
other under  any  contract  of  hire,  express  or  implied,  oral 
or  written,  except  one  whose  employment  is  but  casual,  or 
is  not  in  the  usual  course  of  the  trade,  business,  profession 
or  occupation  of  his  employer.     Any  reference  to  an  employ^ 


TEXTS   OF   COMPENSATION   ACTS  953 

Massachusetts 

who  has  been  injured  shall,  when  the  employ^  is  dead, 
also  include  his  legal  representatives,  dependents  and  other 
persons  to  whom  compensation  may  be  payable.  "Depend- 
ents "  shall  mean  members  of  the  employe's  family  or 
next  of  kin  who  were  wholly  or  partly  dependent  upon  the 
earnings  of  the  employ^  for  support  at  the  time  of  the  injury. 
"Average  weekly  wages"  shall  mean  the  earnings  of  the 
injured  employ 6  during  the  period  of  twelve  calendar  months 
immediately  preceding  the  date  of  injury,  divided  by  fifty- 
two;  but  if  the  injured  employ^  lost  more  than  two  weeks' 
time  during  such  period  then  the  earnings  for  the  remainder 
of  such  twelve  calendar  months  shall  be  divided  by  the 
number  of  weeks  remaining  after  the  time  so  lost  has  been 
deducted.  Where,  by  reason  of  the  shortness  of  the  time 
during  which  the  employ^  has  been  in  the  employment  of 
his  employer,  or  the  nature  or  terms  of  the  employment,  it 
is  impracticable  to  compute  the  average  weekly  wages,  as 
above  defined,  regard  may  be  had  to  the  average  weekly 
amount  which,  during  the  twelve  months  previous  to  the 
injury,  was  being  earned  by  a  person  in  the  same  grade 
employed  at  the  same  work  by  the  same  employer;  or,  if 
there  is  no  person  so  employed,  by  a  person  in  the  same 
grade  employed  in  the  same  class  of  employment  and  in 
the  same  district.  "Association"  shall  mean  the  Massa- 
chusetts Employes  Insurance  Association.  "Subscriber" 
shall  mean  an  employer  who  has  become  a  member  of  the  as- 
sociation by  paying  a  year's  premium  in  advance  and  re- 
ceiving the  receipt  of  the  association  therefor,  provided  that 
the  association  holds  a  license  issued  by  the  insurance  com- 
missioner as  provided  in  Part  IV,  section  twelve. 

Sec.  3.  Any  liability  insurance  company  authorized  to 
do  business  within  this  commonwealth  shall  have  the  same 
right  as  the  association  to  insure  the  liability  to  pay  the 
compensation  provided  for  by  Part  II  of  this  act,  and  when 
such  liability  company  issues  a  policy  conditioned  to  pay 


954    Bradbury's  workmen's  compensation  law 

Massachusetts 

such  compensation  the  holder  of  such  poUcy  shall  be  re- 
garded as  a  subscriber  so  far  as  applicable  within  the  mean- 
ing of  this  act,  and  when  any  such  company  insures  such 
payment  of  compensation  it  shall  be  subject  to  the  pro- 
visions of  Parts  I,  II,  III  and  V  and  of  section  twenty-two 
of  Part  IV  of  this  act,  and  shall  file  with  the  Insurance 
Department  its  classifications  of  risks  and  premiums  re- 
lating thereto  and  any  subsequent  proposed  classifications 
or  premiums,  none  of  which  shall  take  effect  until  the  In- 
surance Commissioner  has  approved  the  same  as  adequate 
for  the  risks  to  which  they  respectively  apply. 

Sec.  4.  Sections  one  hundred  and  thirty-six  to  one  hundred 
and  thirty-nine,  inclusive,  of  chapter  five  hundred  and 
fourteen  of  the  acts  of  the  year  nineteen  hundred  and  nine 
are  hereby  repealed. 

Sec.  5.  The  provisions  of  this  act  shall  not  apply  to  in- 
juries sustained  prior  to  the  taking  effect  thereof. 

Sec.  6.  Part  IV  of  this  act  shall  take  effect  on  the  first 
day  of  January,  nineteen  hundred  and  twelve;  section  one 
to  three  inclusive  of  Part  III  shall  take  effect  on  the  tenth 
day  of  May,  nineteen  hundred  and  twelve;  the  remainder 
thereof  shall  take  effect  on  the  first  day  of  July,  nineteen 
hundred  and  twelve. 

House  op  Representatives. 

July  28,  1911. 
Passed  to  be  enacted. 

JOSEPH  WALKER, 
Speaker. 
In  Senate,  July  28,  1911. 
Passed  to  be  enacted. 

ALLEN  T.  TREADWAY, 

President. 
July  28,  1911. 

Approved, 

EUGENE  N.  FOSS. 


TEXTS   OF   COMPENSATION   ACTS  955 

Michigan 

MICHIGAN 

(L.  1912,  No.  3) 

An  act  to  promote  the  welfare  of  the  people  of  this  State, 
relating  to  the  liability  of  employers  for  injuries  or  death 
sustained  by  their  employes,  providing  compensation 
for  the  accidental  injury  to  or  death  of  employes  and 
methods  for  the  payment  of  the  same,  establishing  an 
industrial  accident  board,  defining  its  powers,  providing 
for  a  review  of  its  awards,  making  an  appropriation  to 
carry  out  the  provisions  of  this  act,  and  restricting  the 
right  to  compensation  or  damages  in  such  cases  to  such 
as  are  provided  by  this  act. 
The  people  of  the  State  of  Michigan  enact: 

Part  I 

MODIFICATION  OF  REMEDIES 

Section  1.  In  an  action  to  recover  damages  for  personal 
injury  sustained  by  an  employ^  in  the  course  of  his  employ- 
ment, or  for  death  resulting  from  personal  injuries  so  sus- 
tained, it  shall  not  be  a  defense : 

(a)  That  the  employe  was  negligent,  unless  and  except 
it  shall  appear  that  such  negligence  was  willful; 

(6)  That  the  injury  was  caused  by  the  negligence  of  a 
fellow  employ^; 

(c)  That  the  employe  had  assumed  the  risks  inherent 
in  or  incidental  to,  or  arising  out  of  his  employment,  or 
arising  from  the  failure  of  the  employer  to  provide  and 
maintain  safe  premises  and  suitable  appliances. 

Sec.  2.  The  provisions  of  section  one  shall  not  apply  to 
actions  to  recover  damages  for  personal  injuries  sustained 
by  household  domestic  servants  and  farm  laborers. 

Sec.  3.  The  provisions  of  section  one  shall  not  apply  to 
actions  to  recover  damages  for  the  death  of,  or  for  personal 


956    Bradbury's  workmen's  compensation  law 

Michigan 

injuries  sustained  by  employes  of  any  employer  who  has 
elected,  with  the  approval  of  the  industrial  accident  board 
hereinafter  created,  to  pay  compensation  in  the  manner 
and  to  the  extent  hereinafter  provided. 

Sec.  4.  Any  employer  who  has  elected,  with  the  approval 
of  the  industrial  accident  board  hereinafter  created,  to  pay 
compensation  as  hereinafter  provided,  shall  not  be  subject 
to  the  provisions  of  section  one;  nor  shall  such  employer 
be  subject  to  any  other  liability  whatsoever,  save  as  herein 
provided  for  the  death  of  or  personal  injury  to  any  employ^, 
for  which  death  or  injury  compensation  is  recoverable  under 
this  act,  except  as  to  employes  who  have  elected  in  the  man- 
ner hereinafter  provided  not  to  become  subject  to  the  pro- 
visions of  this  act. 

Sec.  5.  The  following  shall  constitute  employers  subject 
to  the  provisions  of  this  act: 

1.  The  State  and  each  county,  city,  township,  incor- 
porated village  and  school  district  therein; 

2.  Every  person,  firm  and  private  corporation,  including 
any  public  service  corporation,  who  has  any  person  in  service 
under  any  contract  of  hire,  express  or  implied,  oral  or  written, 
and  who,  at  or  prior  to  the  time  of  the  accident  to  the  em- 
ploy6  for  which  compensation  under  this  act  may  be  claimed, 
shall  in  the  manner  provided  in  the  next  section,  have 
elected  to  become  subject  to  the  provisions  of  this  act,  and 
who  shall  not,  prior  to  such  accident,  have  effected  a  with- 
drawal of  such  election,  in  the  manner  provided  in  the  next 
section. 

Sec.  6.  Such  election  on  the  part  of  the  employers  men- 
tioned in  subdivision  two  of  the  preceding  section,  shall 
be  made  by  filing  with  the  industrial  accident  board  here- 
inafter provided  for,  a  written  statement  to  the  effect  that 
such  employer  accepts  the  provisions  of  this  act,  and  that 
he  adopts,  subject  to  the  approval  of  said  board,  one  of  the 
four  methods  provided  for  the  payment  of  the  compensation 


TEXTS   OF   COMPENSATION   ACTS  957 

Michigan 

hereinafter  specified.  The  fihng  of  such  statement  and  the 
approval  of  said  board  shall  operate,  within  the  meaning  of 
the  preceding  section,  to  subject  such  employer  to  the  pro- 
visions of  this  act  and  all  acts  amendatory  thereof  for  the 
term  of  one  year  from  the  date  of  the  filing  of  such  statement, 
and  thereafter,  without  further  act  on  his  part,  for  successive 
terms  of  one  year  each,  unless  such  employer  shall,  at  least 
thirty  days  prior  to  the  expiration  of  such  first  or  any  suc- 
ceeding year,  file  in  the  office  of  said  board  a  notice  in  writing 
to  the  effect  that  he  desires  to  withdraw  his  election  to  be 
subject  to  the  provisions  of  this  act:  Provided,  however. 
That  such  employer  so  electing  to  become  subject  to  the 
provisions  of  this  act  shall,  within  ten  days  after  the  appro- 
val by  said  board  of  his  election  filed  as  aforesaid,  post  in  a 
conspicuous  place  in  his  plant,  shop,  minor  place  of  work, 
or  if  such  employer  be  a  transportation  company,  at  its 
several  stations  and  docks,  notice  in  the  form  as  prescribed 
and  furnished  by  the  industrial  accident  board  to  the  effect 
that  he  accepts  and  will  be  bound  by  the  provisions  of  this 
a 

Sec.  7.  The  term  "employe"  as  used  in  this  act  shall  be 
construed  to  mean: 

1.  Every  person  in  the  service  of  the  State,  or  of  any 
county,  city,  township,  incorporated  village  or  school  dis- 
trict therein,  under  any  appointment,  or  contract  of  hire, 
express  or  implied,  oral  or  written,  except  any  official  of 
the  State,  or  of  any  county,  city,  township,  incorporated 
village  or  school  district  therein:  Provided,  That  one  em- 
ployed by  a  contractor  who  has  contracted  with  a  county, 
city,  township,  incorporated  village,  school  district  or  the 
State,  through  its  representatives,  shall  not  be  considered 
an  employe  of  the  State,  county,  city,  township,  incorporated 
village  or  school  district  which  made  the  contract; 

2.  Every  person  in  the  service  of  another  under  any  con- 
tract of  hire,  express  or  implied,  oral  or  written,  including 


958    Bradbury's  workmen's  compensation  law 

Michigan 

aliens,  and  also  including  minors  who  are  legally  permitted 
to  work  under  the  laws  of  the  State  who,  for  the  purposes 
of  this  act,  shall  be  considered  the  same  and  have  the  same 
power  to  contract  as  adult  employes,  but  not  including  any 
person  whose  employment  is  but  casual  or  is  not  in  the 
usual  course  of  the  trade,  business,  profession  or  occupa- 
tion of  his  employer. 

Sec.  8.  Any  employ^  as  defined  in  subdivision  one  of 
the  preceding  section  shall  be  subject  to  the  provisions  of 
this  act  and  of  any  act  amendatory  thereof.  Any  employ^ 
as  defined  in  subdivision  two  of  the  preceding  section  shall 
be  deemed  to  have  accepted  and  shall  be  subject  to  the 
provisions  of  this  act  and  of  any  act  amendatory  thereof 
if,  at  the  time  of  the  accident  upon  which  liability  is  claimed: 

1,  The  employer  charged  with  such  liability  is  subject 
to  the  provisions  of  this  act,  whether  the  employe  has  actual 
notice  thereof  or  not;  and 

2.  Such  employe  shall  not,  at  the  time  of  entering  into 
his  contract  of  hire,  express  or  implied,  with  such  employer, 
have  given  to  his  employer  notice  in  writing  that  he  elects 
not  to  be  subject  to  the  provisions  of  this  act;  or,  in  the 
event  that  such  contract  of  hire  was  made  before  such 
employer  became  subject  to  the  provisions  of  this  act,  such 
employ^  shall  have  given  to  his  employer  notice  in  writing 
that  he  elects  not  to  be  subject  to  such  provisions,  or  with- 
out giving  either  of  such  notices  shall  have  remained  in 
the  service  of  such  employer  for  thirty  days  after  the  em- 
ployer has  filed  with  said  board  an  election  to  be  subject 
to  the  terms  of  this  act.  An  employ^  who  has  given  notice 
to  his  employer  in  writing  as  aforesaid  that  he  elects  not 
to  be  subject  to  the  provisions  of  this  act,  may  waive  such 
claim  by  a  notice  in  writing,  which  shall  take  effect  five  days 
after  it  is  delivered  to  the  employer  or  his  agent. 


TEXTS   OF   COMPENSATION   ACTS  959 

Michigan 

Part  II 

COMPENSATION 

Section  1.  If  an  employ^  who  has  not  given  notice  of  his 
election  not  to  be  subject  to  the  provisions  of  this  act,  as  pro- 
vided in  part  one,  section  eight,  or  who  has  given  such  notice 
and  has  waived  the  same  as  hereinbefore  provided,  receives 
a  personal  injury  arising  out  of  and  in  the  course  of  his  em- 
ployment by  an  employer  who  is  at  the  time  of  such  injury 
subject  to  the  provisions  of  this  act,  he  shall  be  paid  com- 
pensation in  the  maimer  and  to  the  extent  hereinafter  pro- 
vided, or  in  case  of  his  death  resulting  from  such  injuries 
such  compensation  shall  be  paid  to  his  dependents  as  herein- 
after defined. 

Sec.  2.  If  the  employ^  is  injured  by  reason  of  his  intentional 
and  willful  misconduct,  he  shall  not  receive  compensation 
under  the  provisions  of  this  act. 

Sec.  3.  No  compensation  shall  be  paid  under  this  act 
for  any  injury  which  does  not  incapacitate  the  employ^ 
for  a  period  of  at  least  two  weeks  from  earning  full  wages, 
but  if  incapacity  extends  beyond  the  period  of  two  weeks, 
compensation  shall  begin  on  the  fifteenth  day  after  the  injury: 
Provided,  However,  That  if  such  disability  continues  for 
eight  weeks  or  longer,  such  compensation  shall  be  computed 
from  the  date  of  the  injury. 

Sec.  4.  During  the  first  three  weeks  after  the  injury  the 
employer  shall  furnish,  or  cause  to  be  furnished,  reasonable 
medical  and  hospital  services  and  medicines  when  they 
are  needed. 

Sec.  5.  If  death  results  from  the  injury,  the  employer 
shall  pay,  or  cause  to  be  paid,  subject,  however,  to  the  pro- 
visions of  section  twelve  hereof,  in  one  of  the  methods  here- 
inafter provided,  to  the  dependents  of  the  employ^,  wholly 
dependent  upon  his  earnings  for  support  at  the  time  of  the 
injury,  a  weekly  payment  equal  to  one-half  his  average 


960    Bradbury's  workmen's  compensation  law 

Michigan 

weekly  wages,  but  not  more  than  ten  dollars  nor  less  than 
four  dollars  a  week  for  a  period  of  three  hundred  weeks  from 
the  date  of  the  injury.  If  the  employ^  leaves  dependents 
only  partly  dependent  upon  his  earnings  for  support  at  the 
time  of  his  injury,  the  weekly  compensation  to  be  paid  as 
aforesaid  shall  be  equal  to  the  same  proportion  of  the  weekly 
payments  for  the  benefit  of  persons  wholly  dependent  as  the 
amount  contributed  by  the  employ^  to  such  partial  de- 
pendents bears  to  the  annual  earnings  of  the  deceased  at  the 
time  of  his  injury.  When  weekly  payments  have  been  made 
to  an  injured  employ 6  before  his  death  the  compensation 
to  dependents  shall  begin  from  the  date  of  the  last  of  such 
payments,  but  shall  not  continue  more  than  three  hundred 
weeks  from  the  date  of  the  injury. 

Sec.  6.  The  following  persons  shall  be  conclusively  pre- 
sumed to  be  wholly  dependent  for  support  upon  a  deceased 
employ^: 

(a)  A  wife  upon  a  husband  with  whom  she  lives  at  the 
time  of  his  death; 

(h)  A  husband  upon  a  wife  with  whom  he  lives  at  the 
time  of  her  death; 

(c)  A  child  or  children  under  the  age  of  sixteen  years  (or 
over  said  age,  if  physically  or  mentally  incapacitated  from 
earning)  upon  the  parent  with  whom  he  is  or  they  are  living 
at  the  time  of  the  death  of  such  parent,  there  being  no  surviv- 
ing parent.  In  case  there  is  more  than  one  child  thus  depend- 
ent, the  death  benefit  shall  be  divided  equally  among  them. 
In  all  other  cases  questions  of  dependency,  in  whole  or  in 
part,  shall  be  determined  in  accordance  with  the  fact,  as  the 
fact  may  be  at  the  time  of  the  injury;  and  in  such  other  cases, 
if  there  is  more  than  one  person  wholly  dependent,  the  death 
benefit  shall  be  divided  equally  among  them,  and  persons 
partly  dependent,  if  any,  shall  receive  no  part  thereof;  if  there 
is  no  one  wholly  dependent  and  more  than  one  person  partly 
dependent,  the  death  benefit  shall  be  divided  among  them 


TEXTS   OF   COMPENSATION   ACTS  961 

Michigan 

according  to  the  relative  extent  of  their  dependency.  No 
person  shall  be  considered  a  dependent,  unless  a  member 
of  the  family  of  the  deceased  employ^,  or  bears  to  him  the 
relation  of  husband  or  widow,  or  lineal  descendant,  or  ances- 
tor, or  brother  or  sister. 

Sec.  7.  Questions  as  to  who  constitute  dependents  and  the 
extent  of  their  dependency  shall  be  determined,  as  of  the 
date  of  the  accident  to  the  employ^,  and  their  right  to  any 
death  benefit  shall  become  fixed  as  of  such  time,  irrespective 
of  any  subsequent  change  in  conditons;  and  the  death  benefit 
shall  be  directly  recoverable  by  and  payable  to  the  dependent 
or  dependents  entitled  thereto,  or  their  legal  guardians  or 
trustees.  In  case  of  the  death  of  one  such  dependent  his 
proportion  of  such  compensation  shall  be  payable  to  the 
surviving  dependents  pro  rata.  Upon  the  death  of  all  such 
dependents  compensation  shall  cease.  No  person  shall  be 
excluded  as  a  dependent  who  is  a  non-resident  alien.  No 
dependent  of  an  injured  employe  shall  be  deemed,  during 
the  life  of  such  employe,  a  party  in  interest  to  any  proceeding 
by  him  for  the  enforcement  of  collection  of  any  claim  for 
compensation,  nor  as  respects  the  compromise  thereof  by 
such  employe. 

Sec.  8.  If  the  employe  leaves  no  dependents  the  employer 
shall  pay,  or  cause  to  be  paid  as  hereinafter  provided,  the 
reasonable  expense  of  his  last  sickness  and  burying,  which 
shall  not  exceed  two  hundred  dollars. 

Sec.  9.  While  the  incapacity  for  work  resulting  from  the 
injury  is  total,  the  employer  shall  pay,  or  cause  to  be  paid 
as  hereinafter  provided,  to  the  injured  employ 6  a  weekly  com- 
pensation equal  to  one-half  his  average  weekly  wages,  but 
not  more  than  ten  dollars  nor  less  than  four  dollars  a  week ; 
and  in  no  case  shall  the  period  covered  by  such  compensa- 
tion be  greater  than  five  hundred  weeks,  nor  shall  the  total 
amount  of  all  compensation  exceed  four  thousand  dollars. 

Sec.  10.  While  the  incapacity  for  work  resulting  from  the 
61 


962    Bradbury's  workmen's  compensation  law 

Michigan 

injury  is  partial,  the  employer  shall  pay,  or  cause  to  be  paid 
as  hereinafter  provided,  to  the  injured  employe  a  weekly 
compensation  equal  to  one-half  the  difference  between  his 
average  weekly  wages  before  the  injury  and  the  average 
weekly  wages  which  he  is  able  to  earn  thereafter,  but  not 
more  than  ten  dollars  a  week;  and  in  no  case  shall  the  period 
covered  by  such  compensation  be  greater  than  three  hundred 
weeks  from  the  date  of  the  injury.  In  cases  included  by  the 
following  schedule  the  disability  in  each  such  case  shall  be 
deemed  to  continue  for  the  period  specified,  and  the  compen- 
sation so  paid  for  such  injury  shall  be  as  specified  therein, 
to-wit : 

For  the  loss  of  a  thumb,  fifty  per  centum  of  the  average 
weekly  v/ages  during  sixty  weeks; 

For  the  loss  of  a  first  finger,  commonly  called  index  finger, 
fifty  per  centum  of  average  weekly  wages  during  thirty-five 
weeks; 

For  the  loss  of  a  second  finger,  fifty  per  centum  of  average 
weekly  wages  during  thirty  weeks; 

For  the  loss  of  a  third  finger,  fifty  per  centum  of  average 
weekly  wages  during  twenty  weeks; 

For  the  loss  of  a  fourth  finger,  commonly  called  little 
finger,  fifty  per  centum  of  average  weekly  wages  during 
fifteen  weeks; 

The  loss  of  the  first  phalange  of  the  thumb,  or  of  any  finger, 
shall  be  considered  to  be  equal  to  the  loss  of  one-half  of  such 
thumb,  or  finger,  and  compensation  shall  be  one-half  the 
amounts  above  specified; 

The  loss  of  more  than  one  phalange  shall  be  considered 
as  the  loss  of  the  entire  finger  or  thumb :  Provided,  however, 
That  in  no  case  shall  the  amount  received  for  more  than  one 
finger  exceed  the  amount  provided  in  this  schedule  for  the 
loss  of  a  hand; 

For  the  loss  of  a  great  toe,  fifty  per  centum  of  average 
weekly  wages  during  thirty  weeks; 


TEXTS   OF   COMPENSATION   ACTS  963 

Michigan 

For  the  loss  of  one  of  the  toes  other  than  a  great  toe, 
fifty  per  centum  of  average  weekly  wages  during  ten  weeks; 

The  loss  of  the  first  phalange  of  any  toe  shall  be  considered 
to  be  equal  to  the  loss  of  one-half  of  such  toe,  and  compensa- 
tion shall  be  one-half  of  the  amount  above  specified; 

The  loss  of  more  than  one  phalange  shall  be  considered  as 
the  loss  of  the  entire  toe; 

For  the  loss  of  a  hand,  fifty  per  centum  of  average  weekly 
wages  during  one  hundred  and  fifty  weeks; 

For  the  loss  of  an  arm,  fifty  per  centum  of  average  weekly 
wages  during  two  hundred  weeks; 

For  the  loss  of  a  foot,  fifty  per  centum  of  average  weekly 
wages  during  one  hundred  and  twenty-five  weeks; 

For  the  loss  of  a  leg,  fifty  per  centum  of  average  weekly 
wages  during  one  hundred  and  seventy-five  weeks; 

For  the  loss  of  an  eye,  fifty  per  centum  of  average  weekly 
wages  during  one  hundred  weeks ; 

The  loss  of  both  hands,  or  both  arms,  or  both  feet,  or 
both  legs,  or  both  eyes,  or  of  any  two  thereof,  shall  constitute 
total  and  permanent  disability,  to  be  compensated  according 
to  the  provisions  of  section  nine. 

The  amounts  specified  in  this  clause  are  all  subject  to  the 
same  limitations  as  to  maximum  and  minimum  as  above 
stated. 

Sec.  11.  The  term  "average  weekly  wages"  as  used  in 
this  act  is  defined  to  be  one  fifty-second  part  of  the  average 
annual  earnings  of  the  employ^.  If  the  injured  employe  has 
not  worked  in  the  employment  in  which  he  was  working  at 
the  time  of  the  accident,  whether  for  the  employer  or  not, 
during  substantially  the  whole  of  the  year  immediately  pre- 
ceding his  injury,  his  average  annual  earnings  shall  consist 
of  three  hundred  times  the  average  daily  wage  or  salary 
which  he  has  earned  in  such  employment  during  the  days 
when  so  employed.  If  the  injured  employe  has  not  worked 
in  such  employment  during  substantially  the  whole  of  such 


964    Bradbury's  workmen's  compensation  law 

Michigan 

immediately  preceding  year,  his  average  annual  earnings 
shall  consist  of  three  hundred  times  the  average  daily  wage 
or  salary  which  an  employe  of  the  same  class  working  sub- 
stantially the  whole  of  such  immediately  preceding  year  in 
the  same  or  a  similar  employment  in  the  same  or  a  neighbor- 
ing place,  shall  have  earned  in  such  employment  during  the 
days  when  so  employed.  In  cases  where  the  foregoing  methods 
of  arriving  at  the  average  annual  earnings  of  the  injured 
employe  cannot  reasonably  and  fairly  be  applied,  such  armual 
earnings  shall  be  taken  at  such  sum  as,  having  regard  to  the 
previous  earnings  of  the  injured  employ^,  and  of  other  em- 
ployes of  the  same  or  most  similar  class,  working  in  the 
same  or  most  similar  employment,  in  the  same  or  neighbor- 
ing locality,  shall  reasonably  represent  the  annual  earning 
capacity  of  the  injured  employ^  at  the  time  of  the  accident 
in  the  employment  in  which  he  was  working  at  such  time. 
The  fact  that  an  employ^  has  suffered  a  previous  disability, 
or  received  compensation  therefor,  shall  not  preclude  com- 
pensation for  a  later  injury,  or  for  death,  but  in  determining 
compensation  for  the  later  injury,  or  death,  his  average 
annual  earnings  shall  be  such  sum  as  will  reasonably  repre- 
sent his  annual  earning  capacity  at  the  time  of  the  later 
injury  in  the  employment  in  which  he  was  working  at  such 
time,  and  shall  be  arrived  at  according  to  and  subject  to  the 
limitations  of  the  provisions  of  this  section.  The  weekly 
loss  in  wages  referred  to  in  this  act  shall  consist  of  such  per- 
centage of  the  average  weekly  earnings  of  the  injured  employ^ 
computed  according  to  the  provisions  of  this  section,  as  shall 
fairly  represent  the  proportionate  extent  of  the  impairment 
of  his  earning  capacity  in  the  employment  in  which  he  wasi 
working  at  the  time  of  the  accident,  the  same  to  be  fixed 
as  of  the  time  of  the  accident,  but  to  be  determined  in  view 
of  the  nature  and  extent  of  the  injury. 

Sec.  12.  The  death  of  the  injured  emi)loy6  prior  to  the 
expiration  of  the  period  within  which  he  would  receive  such 


TEXTS   OF   COMPENSATION   ACTS  965 

Michigan 

weekly  payments  shall  be  deemed  to  end  such  disability, 
and  all  liability  for  the  remainder  of  such  payments  which 
he  would  have  received  in  case  he  had  lived  shall  be  termi- 
nated, but  the  employer  shall  thereupon  be  liable  for  the 
following  death  benefits  in  lieu  of  any  further  disability 
indemnity : 

If  the  injury  so  received  by  such  employ^  was  the  proxi- 
mate cause  of  his  death,  and  such  deceased  employ^  leaves 
dependents,  as  hereinbefore  specified,  wholly  or  partially 
dependent  on  him  for  support,  the  death  benefit  shall  be  a 
sum  sufficient,  when  added  to  the  indemnity  which  shall 
at  the  time  of  death  have  been  paid  or  become  payable 
under  the  provisions  of  this  act  to  such  deceased  emploj'e, 
to  make  the  total  compensation  for  the  injury  and  death 
exclusive  of  medical  and  hospital  services  and  medicines 
furnished  as  provided  in  section  four  hereof,  equal  to  the 
full  amount  which  such  dependents  would  have  been  en- 
titled to  receive  under  the  provisions  of  section  five  hereof 
in  case  the  accident  had  resulted  in  immediate  death,  and 
such  benefits  shall  be  payable  in  weekly  installments  in  the 
same  manner  and  subject  to  the  same  terms  and  conditions 
in  all  respects  as  payments  made  under  the  provisions  of 
said  section  five. 

Sec.  13.  No  savings  or  insurance  of  the  injured  employ^, 
nor  any  contribution  made  by  him  to  any  benefit  fund  or 
protective  association  independent  of  this  act,  shall  be 
taken  into  consideration  in  determining  the  compensation 
to  be  paid  hereunder,  nor  shall  benefits  derived  from  any 
other  source  than  those  paid  or  caused  to  be  paid  by  the 
employer  as  herein  provided,  be  considered  in  fixing  the 
compensation  under  this  act. 

Sec.  14.  If  an  injured  employe  is  mentally  incompetent 
or  is  a  minor  at  the  time  when  any  right  or  privilege  accrues 
to  him  under  this  act,  his  guardian  or  next  friend  may  in 
his  behalf  claim  and  exercise  such  right  or  privilege. 


966    Bradbury's  workmen's  compensation  law 

Michigan 

Sec.  15.  No  proceedings  for  compensation  for  an  injury 
under  this  act  shall  be  maintained,  unless  a  notice  of  the 
injury  shall  have  been  given  to  the  employer  three  months 
after  the  happening  thereof,  and  unless  the  claim  for  com- 
pensation with  respect  to  such  injury  shall  have  been  made 
within  six  months  after  the  occurrence  of  the  same;  or, 
in  case  of  the  death  of  the  employe,  or  in  the  event  of  his 
physical  or  mental  incapacity,  within  six  months  after 
death  or  the  removal  of  such  physical  or  mental  incapacity. 

Sec.  16.  The  said  notice  shall  be  in  writing,  and  shall 
state  in  ordinary  language  the  time,  place  and  cause  of  the 
injury;  and  shall  be  signed  by  the  person  injured,  or  by  a  per- 
son in  his  behalf,  or,  in  the  event  of  his  death,  by  his  de- 
pendents or  by  a  person  in  their  behalf. 

Sec.  17.  The  notice  shall  be  served  upon  the  employer 
or  an  agent  thereof.  Such  service  may  be  made  by  deliver- 
ing said  notice  to  the  person  on  whom  it  is  to  be  served,  or 
leaving  it  at  his  residence  or  place  of  business,  or  by  sending 
it  by  registered  mail  addressed  to  the  person  or  corporation 
on  whom  it  is  to  be  served,  at  his  last  known  residence  or 
place  of  business. 

Sec.  18.  A  notice  given  under  the  provisions  of  this  act 
shall  not  be  held  invalid  or  insufficient  by  reason  of  any  in- 
accuracy in  stating  the  time,  place  or  cause  of  the  injury, 
unless  it  is  shown  that  it  was  the  intention  to  mislead,  and 
the  employer,  or  the  insurance  company  carrying  such 
risk,  or  the  commissioner  of  insurance,  as  the  case  may 
be,  was  in  fact  misled  thereby.  Want  of  such  written 
notice  shall  not  be  a  bar  to  proceedings  under  this  act,  if  it 
be  shown  that  the  employer  had  notice  or  knowledge  of  the 
injury. 

Sec.  19.  After  an  employ^  has  given  notice  of  an  injury, 
as  provided  by  this  act,  and  from  time  to  time  thereafter 
during  the  continuance  of  his  disability,  he  shall,  if  so  re- 
quested by  the  employer,  or  the  insurance  company  carrying 


TEXTS   OF   COMPENSATION   ACTS  967 

Michigan 

such  risk,  or  the  commissioner  of  insurance,  as  the  case  may 
be,  submit  himself  to  an  examination  by  a  physician  or 
surgeon  authorized  to  practice  medicine  under  the  laws  of 
the  State,  furnished  and  paid  for  by  the  employer,  or  the 
insurance  company  carrying  such  risk,  or  the  commissioner 
of  insurance,  as  the  case  may  be.  The  employe  shall  have 
the  right  to  have  a  physician  provided  and  paid  for  by  him- 
self present  at  the  examination.  If  he  refuses  to  submit 
himself  for  the  examination,  or  in  any  way  obstructs  the 
same,  his  right  to  compensation  shall  be  suspended,  and  his 
compensation  during  the  period  of  suspension  may  be  for- 
feited. Any  physician  who  shall  make  or  be  present  at 
any  such  examination  may  be  required  to  testify  under 
oath  as  to  the  results  thereof. 

Sec.  20.  No  agreement  by  an  employe  to  waive  his  rights 
to  compensation  under  this  act  shall  be  valid. 

Sec.  21.  No  payment  under  this  act  shall  be  assignable 
or  subject  to  attachment  or  garnishment,  or  be  held  liable 
in  any  way  for  any  debts.  In  case  of  insolvency  every  lia- 
bility for  compensation  under  this  act  shall  constitute  a  first 
lien  upon  all  the  property  of  the  employer  liable  therefor, 
paramount  to  all  other  claims  or  liens  except  for  wages  and 
taxes,  and  such  liens  shall  be  enforced  by  order  of  the  court. 

Sec.  22.  Whenever  any  weekly  payment  has  been  con- 
tinued for  not  less  than  six  months,  the  liability  therefor 
may  be  redeemed  by  the  payment  of  a  lump  sum  by  agree- 
ment of  the  parties,  subject  to  the  approval  of  the  indus- 
trial accident  board,  and  said  board  may  at  any  time  direct 
in  any  case,  if  special  circumstances  be  found  which  in  its 
judgment  require  the  same,  that  the  deferred  payments 
be  commuted  on  the  present  worth  thereof  at  five  per  cent 
per  annum  to  one  or  more  lump  sum  payments,  and  that 
such  payments  shall  be  made  by  the  employer  or  the  in- 
surance company  carrying  x  such  risk,  or  commissioner  of 
insurance,  as  the  case  may  be. 


068      BRADBtlRY^S   WORKMEN's   COMPENSATION   LAW 

Michigan 

Part  III 

PROCEDURE 

Section  1.  There  is  hereby  created  a  board  which  shall 
be  known  as  the  Industrial  Accident  Board,  consisting  of 
three  members  to  be  appointed  by  the  governor,  by  and 
with  the  consent  of  the  senate,  one  of  whom  shall  be  desig- 
nated by  the  governor  as  chairman.  Appointments  to  fill 
vacancies  may  be  made  during  recesses  of  the  senate,  but 
shall  be  subject  to  confirmation  by  the  senate  at  the  next 
ensuing  session  of  the  legislature.  The  term  of  office  of 
members  of  this  board  shall  be  six  years,  except  that  when 
first  constituted  one  member  shall  be  appointed  for  two 
years,  one  for  four  years,  and  one  for  six  years.  Thereafter 
one  member  shall  be  appointed  every  second  year  for  the  full 
term  of  six  years.  No  more  than  two  members  of  this  board 
shall  belong  to  the  same  political  party. 

Sec.  2.  The  salary  of  each  of  the  members  so  appointed 
by  the  governor  shall  be  three  thousand  five  hundred  dollars 
per  year.  The  board  may  appoint  a  secretary  at  a  salary 
of  not  more  than  two  thousand  five  hundred  dollars  a  year, 
and  may  remove  him.  The  board  shall  be  provided  with 
an  office  in  the  capitol,  or  in  some  other  suitable  building 
in  the  city  of  Lansing,  in  which  its  records  shall  be  kept,  and 
it  shall  also  be  provided  with  necessary  office  furniture,  sta- 
tionery and  other  supplies.  It  shall  provide  itself  with  a 
seal  for  the  authentication  of  its  orders,  awards  and  pro- 
ceedings, upon  which  shall  be  inscribed  the  words  "Indus- 
trial Accident  Board — Michigan — Seal."  It  shall  employ 
such  assistants  and  clerical  help  as  it  may  deem  necessary 
and  fix  the  compensation  of  all  persons  so  employed:  Pro- 
vided, That  the  average  compensation  paid  to  such  employe 
shall  not  exceed  one  thousand  dollars  per  annum  for  each 
person  employed,  and  all  such  clerical  assistants  shall  be 
subject  to  existing  laws  regulating  the  grading  and  compen- 


TEXTS   OF   COMPENSATION   ACTS  969 

Michigan 

sation  of  department  clerks.  The  members  of  the  board 
and  its  assistants  shall  be  entitled  to  receive  from  the  State 
their  actual  and  necessary  expenses  while  traveling  on  the 
business  of  the  board;  but  such  expenses  shall  be  sworn  to 
by  the  person  who  incurred  the  same,  and  be  approved  by 
the  chairman  of  the  board  before  payment  is  made. 

All  such  salaries  and  expenses  when  audited  and  allowed 
by  the  board  of  state  auditors,  shall  be  paid  by  the  state 
treasurer  out  of  the  general  fund,  upon  warrant  of  the 
auditor  general. 

Sec.  3.  The  board  may  make  rules  not  inconsistent  with 
this  act  for  carrying  out  the  provisions  of  the  act.  Process 
and  procedure  under  this  act  shall  be  as  summary  as  reason- 
ably may  be.  The  board  or  any  member  thereof  shall  have 
the  power  to  administer  oaths,  subpoena  witnesses  and  to 
examine  such  parts  of  the  books  and  records  of  the  parties 
to  a  proceeding  as  relate  to  questions  in  dispute. 

Sec.  4.  The  board  shall  cause  to  be  printed  and  furnish 
free  of  charge  to  any  employer  or  employe  such  blank  forms 
as  it  shall  deem  requisite  to  facilitate  or  promote  the  efficient 
administration  of  this  act;  it  shall  provide  a  proper  record 
book  in  which  shall  be  entered  and  indexed  the  name  of  any 
employer  who  shall  file  a  statement  of  election  under  this 
act,  and  the  date  of  the  filing  thereof  and  its  approval  by 
such  board,  and  a  separate  book  in  which  shall  be  entered 
and  indexed  the  name  of  every  employer  who  shall  file  his 
notice  of  withdrawal  of  said  election,  and  the  date  of  the  fifing 
thereof;  and  books  in  which  shall  be  recorded  all  orders  and 
awards  made  by  the  board;  and  such  other  books  or  records 
as  it  shall  deem  required  by  the  proper  and  efficient  adminis- 
tration of  this  act;  all  such  records  to  be  kept  in  the  office 
of  the  board.  Upon  the  filing  of  a  statement  of  election 
by  an  employer  to  become  subject  to  the  provisions  of  this 
act,  the  board  shall  forthwith  cause  such  notice  of  the  fact 
to  be  given  by  requiring  said  employer  to  post  such  notice 


970    Bradbury's  workmen's  compensation  law 

Michigan 

as  hereinbefore  provided;  and  the  board  shall  likewise  cause 
notice  to  be  given  of  the  filing  of  any  withdrawal  of  such 
election;  but  notwithstanding  the  failure  to  give,  or  the 
insufficiency  of,  any  such  notice,  knowledge  of  all  filed  state- 
ments of  election  and  notices  of  withdrawal  of  election,  and 
of  the  time  of  the  filing  of  the  same,  shall  conclusively  be 
imputed  to  all  employes. 

Sec.  5.  If  the  employer,  or  the  insurance  company  carry- 
ing such  risk,  or  commissioner  of  insurance,  as  the  case  may 
be,  and  the  injured  employe  reach  an  agreement  in  regard 
to  compensation  under  this  act,  a  memorandum  of  such 
agreement  shall  be  filed  with  the  industrial  accident  board, 
and,  if  approved  by  it,  shall  be  deemed  final  and  binding 
upon  the  parties  thereto.  Such  agreements  shall  be  approved 
by  said  board  only  when  the  terms  conform  to  the  provi- 
sions of  this  act. 

Sec.  6.  If  the  employer,  or  the  insurance  company  carry- 
ing such  risk,  or  the  commissioner  of  insurance,  as  the  case 
may  be,  and  the  employe  fail  to  reach  an  agreement  in  re- 
gard to  compensation  under  this  act,  either  party  may 
notify  the  industrial  accident  board,  who  shall  thereupon 
call  for  the  formation  of  a  committee  of  arbitration.  The 
committee  of  arbitration  shall  consist  of  three  members, 
one  of  whom  shall  be  a  member  of  the  industrial  accident 
board,  and  shall  act  as  chairman.  The  other  two  members 
shall  be  named  respectively  by  the  two  parties. 

Sec.  7.  It  shall  be  the  duty  of  the  industrial  accident 
board,  upon  notification  that  the  parties  have  failed  to 
reach  an  agreement,  to  request  both  parties  to  appoint  their 
respective  representatives  on  the  committee  of  arbitration. 
The  board  shall  designate  one  of  its  members  to  act  as  chair- 
man, and,  if  either  party  does  not  appoint  its  member  on 
this  committee  within  seven  days  after  notification  as  above 
provided,  the  board  or  any  member  thereof  shall  fill  the 
vacancy  and  notify  the  parties  to  that  effect. 


TEXTS   OF   COMPENSATION   ACTS  971 

Michigan 

Sec.  8.  The  committee  of  arbitration  shall  make  such 
inquiries  and  investigations  as  it  shall  deem  necessary.  The 
hearings  of  the  committee  shall  be  held  at  the  locality  where 
the  injury  occurred,  and  the  decision  of  the  committee  shall 
be  filed  with  the  industrial  accident  board.  Unless  a  claim 
for  a  reivew  is  filed  by  either  party  within  seven  days,  the 
decision  shall  stand  as  the  decision  of  the  industrial  accident 
board:  Provided,  That  said  industrial  accident  board  may, 
for  sufficient  cause  shown,  grant  further  time  in  which  to 
claim  such  review. 

Sec.  9.  The  industrial  board  or  any  member  thereof 
may  appoint  a  duly  qualified  impartial  physician  to  ex- 
amine the  injured  employe  and  to  report.  The  fee  for  this 
service  shall  be  five  dollars  and  traveling  expenses,  but  the 
board  may  allow  additional  reasonable  amounts  in  extraordi- 
nary cases. 

Sec.  10.  The  arbitrators  named  by  or  for  the  parties  to  the 
dispute  shall  each  receive  five  dollars  a  day  for  his  services, 
but  the  industrial  accident  board  or  any  member  thereof  may 
allow  additional  reasonable  amounts  in  extraordinary  cases. 
The  fees  of  such  arbitrators  and  other  costs  of  such  arbitra- 
tion, not  exceeding,  however,  the  taxable  costs  allowed  in 
suits  at  law  in  the  circuit  courts  of  this  State,  shall  be  fixed 
by  the  board  and  paid  by  the  State  as  the  other  expenses  of 
the  board  are  paid.  The  fees  and  the  payment  thereof  ot 
all  attorneys  and  physicians  for  services  under  this  act 
shall  be  subject  to  the  approval  of  the  industrial  accident 
board. 

Sec.  11.  If  a  claim  for  review  is  filed,  as  provided  in  part 
three,  section  eight,  the  industrial  accident  board  shall 
promptly  review  the  decision  of  the  committee  of  arbitra- 
tion and  such  records  as  may  have  been  kept  of  its  hearings, 
and  shall  also  if  desired  hear  the  parties,  together  with  such 
additional  evidence  as  they  may  wish  to  submit,  and  file 
its  decision  therein  with  the  records  of  such  proceedings. 


972    Bradbury's  workmen's  compensation  law 

Michigan 

Such  review  and  hearing  may  be  held  in  its  office  at  Lansing 
or  elsewhere  as  the  board  shall  deem  advisable. 

Sec,  12.  The  findings  of  fact  made  by  said  industrial 
accident  board  acting  within  its  powers,  shall,  in  the  absence 
of  fraud,  be  conclusive,  but  the  supreme  court  shall  have 
power  to  review  questions  of  law  involved  in  any  final  de- 
cision or  determination  of  said  industrial  accident  board: 
Provided,  That  application  is  made  by  the  aggrieved  party 
within  thirty  days  after  such  determination  by  certiorari, 
mandamus  or  by  any  other  method  permissible  under  the 
rules  and  practice  of  said  court  or  the  laws  of  this  State, 
and  to  make  such  further  orders  in  respect  thereto  as  justice 
may  require. 

Sec.  13.  Either  party  may  present  a  certified  copy  of 
the  decision  of  such  industrial  accident  board  approving 
agreements  of  settlement  as  provided  in  part  three,  section 
five  hereof,  or  of  the  decision  of  such  committee  of  arbitra- 
tion when  no  claim  for  review  is  made  as  provided  in  part 
three,  section  eight,  or  of  the  decision  of  such  industrial 
accident  board  when  a  claim  for  review  is  filed  as  provided 
in  part  three,  section  eleven,  providing  for  payment  of  com- 
pensation under  this  act,  to  the  circuit  court  for  the  county 
in  which  such  accident  occurred,  whereupon  said  court  shall, 
without  notice,  render  a  judgment  in  accordance  therewith 
against  said  employer  and  also  against  any  insurance  com- 
pany carrying  such  risk  under  the  provisions  of  this  act; 
which  judgment,  until  and  unless  set  aside  shall  have  the 
same  effect  as  though  duly  rendered  in  an  action  duly  tried 
and  determined  by  said  court,  and  shall,  with  like  effect, 
be  entered  and  docketed. 

Sec.  14.  Any  weekly  payment  under  this  act  may  be  re- 
viewed by  the  industrial  accident  board  at  the  request  of 
the  employer  or  the  insurance  company  carrying  such  risks, 
or  the  commissioner  of  insurance  as  the  case  may  be,  or  the 
emploj'^;  and  on  such  review  it  may  be  ended,  diminished 


TEXTS   OF   COMPENSATION   ACTS  973 

Michigan 

or  increased,  subject  to  the  maximum  and  minimum  amounts 
above  provided,  if  the  board  finds  that  the  facts  warrant 
such  action. 

Sec.  15.  Where  the  injury  for  which  compensation  is  pay- 
able under  this  act  was  caused  under  circumstances  creating  a 
legal  liability  in  some  person  other  than  the  employer  to  pay 
damages  in  respect  thereof,  the  employ^  may  at  his  option 
proceed  either  at  law  against  that  person  to  recover  damages, 
or  against  the  employer  for  compensation  under  this  act,  but 
not  against  both,  and  if  compensation  be  paid  under  this  act 
the  employer  may  enforce  for  his  benefit  or  for  that  of  the  in- 
surance company  carrying  such  risk,  or  the  commissioner  of 
insurance,  as  the  case  may  be,  the  liability  of  such  other 
person. 

Sec.  16.  All  questions  arising  under  this  act,  if  not  settled 
by  agreement  by  tne  parties  interested  therein,  shall,  except 
as  otherwise  herein  provided,  be  determined  by  the  indus- 
trial accident  board. 

Sec.  17.  Every  employer  shall  hereafter  keep  a  record 
of  all  injuries,  fatal  or  otherwise,  received  by  his  employes 
in  the  course  of  their  employment.  Within  ten  days  after 
the  occurrence  of  an  accident  resulting  in  personal  injury 
a  report  thereof  shall  be  made  in  writing  to  the  industrial 
accident  board  on  blanks  to  be  procured  from  the  board 
for  that  purpose.  The  said  reports  shall  contain  the  name 
and  nature  of  the  business  of  the  employer,  the  location  of 
his  establishment  or  place  of  work,  the  name,  age,  sex  and 
occupation  of  the  injured  employ^,  and  shall  state  the  time, 
the  nature  and  cause  of  the  injury,  and  such  other  informa- 
tion as  may  be  required  by  the  board.  Any  employer  who 
refuses  or  neglects  to  make  the  report  required  by  this  sec- 
tion shall  be  punished  by  a  fine  of  not  more  than  fifty  dol- 
lars for  each  offense. 


974    Bradbury's  workmen's  compensation  law 

Michigan 


Part  IV 

METHOD    OF   PAYMENT 

Section  1.  Every  employer  filing  his  election  to  become 
subject  to  the  provisions  of  this  act,  as  hereinbefore  set  forth, 
shall  have  the  right  to  specify  at  the  time  of  doing  so,  subject 
to  the  approval  of  said  industrial  accident  board,  which  of 
the  following  methods  for  the  payment  of  such  compensation 
he  desires  to  adopt,  to-wit : 

First.  Upon  furnishing  satisfactory  proof  to  said  board 
of  his  solvency  and  financial  ability  to  pay  the  compensation 
and  benefits  hereinbefore  provided  for,  to  make  such  pay- 
ments directly  to  his  employes,  as  they  may  become  entitled 
to  receive  the  same  under  the  terms  and  conditions  of  this 
act;  or 

Second.  To  insure  against  such  liability  in  any  employers' 
liability  company  authorized  to  take  such  risks  in  the  State 
of  Michigan;  or 

Third.  To  insure  against  such  liability  in  any  employers' 
insurance  association  organized  under  the  laws  of  the  State 
of  Michigan;  or 

Fourth.  To  request  the  commissioner  of  insurance  of  the 
State  of  Michigan  to  assume  the  administration  of  the  dis- 
bursement of  such  compensation  exclusive  of  that  provided 
for  in  part  two,  section  four  herein,  and  the  collection  of  the 
premiums  and  assessments  necessary  to  pay  the  same,  as 
provided  in  part  five  hereof.  Said  board,  however,  shall 
have  the  right,  from  time  to  time  to  review  and  alter  its 
decision  in  approving  the  election  of  such  employer  to  adopt 
any  one  of  the  foregoing  methods  of  payment,  if  in  its  judg- 
ment such  action  is  necessary  or  desirable  to  secure  and  safe- 
guard such  payments  to  employes. 

Sec.  2.  Nothing  herein  shall  affect  any  existing  contract 
for  employers'  liability  insurance  or  affect  the  organization 


TEXTS  OF   COMPENSATION   ACTS  975 

Michigan 

of  any  mutual  or  other  insurance  company,  or  any  arrange- 
ment now  existing  between  employers  and  employes,  provid- 
ing for  the  payment  to  such  employes,  their  families,  depend- 
ents or  representatives,  sick,  accident  or  death  benefits, 
in  addition  to  the  compensation  provided  for  by  this  act. 
But  liability  for  compensation  under  this  act  shall  not  be 
reduced  or  affected  by  any  insurance,  contribution  or  other 
benefit  whatsoever,  due  to  or  received  by  the  person  entitled 
to  such  compensation,  and  the  person  so  entitled  shall, 
irrespective  of  any  insurance  or  other  contract,  have  the 
right  to  recover  the  same  directly  from  the  employer;  and  in 
addition  thereto,  the  right  to  enforce  in  his  own  name  in 
the  manner  provided  in  this  act  the  liability  of  any  insurance 
company  or  of  any  employers'  association  organized  under 
the  laws  of  the  State  of  Michigan,  or  the  commissioner  of 
insurance,  who  may,  in  whole  or  in  part,  have  insured  the 
liability  for  such  compensation:  Provided,  however,  That 
payment  in  whole  or  in  part  of  such  compensation  by  either 
the  employer,  or  the  insurance  company  carrying  such  risk, 
or  the  commissioner  of  insurance,  as  the  case  may  be,  shall, 
to  the  extent  thereof  be  a  bar  to  recovery  against  the  other, 
of  the  amount  so  paid. 

Sec.  3.  Every  contract  for  the  insurance  of  the  compen- 
sation herein  provided  for,  or  against  liability  therefor, 
shall  be  deemed  to  be  made  subject  to  the  provisions  of  this 
act,  and  provisions  thereof  inconsistent  with  this  act  shall 
be  void.  No  company  shall  enter  into  any  such  contract  for 
insurance,  unless  such  company  shall  have  been  approved 
by  the  commissioner  of  insurance  as  provided  by  law. 

Sec.  4.  Any  employer  against  whom  liability  may  exist 
for  compensation  under  this  act  may,  with  the  approval 
of  the  industrial  accident  board,  be  relieved  therefrom  by: 

1.  Depositing  the  present  value  of  the  total  unpaid  com- 
pensation for  which  such  liability  exists,  assuming  interest 
at  three  per  centum  per  annum,  with  such  trust  company  of 


976    Bradbury's  workmen's  compensation  law 

Michigan 

this  State  as  shall  be  designated  by  the  employe,  or  by  his 
dependents,  in  case  of  his  death,  and  such  liability  exists 
in  their  favor,  or  in  default  of  such  designation  by  him,  or 
them,  after  ten  days'  notice  in  writing  from  the  employer, 
with  such  trust  company  of  this  State  as  shall  be  designated 
by  the  industrial  accident  board;  or 

2.  By  the  purchase  of  an  annuity,  within  the  limitation 
provided  by  law,  in  any  insurance  company  granting  annuities 
and  licensed  in  this  State,  which  may  be  designated  by  the 
employ^,  or  his  dependents,  or  the  industrial  accident  board, 
as  provided  in  subsection  one  of  this  section. 

Part  V 
administration  by  commissioner  of  insurance 

Section  1.  Whenever  five  or  more  employers,  who  have 
become  subject  to  the  provisions  of  this  act,  and  who  have 
on  their  pay  rolls  an  aggregate  number  of  not  less  than  three 
thousand  employes,  shall  in  writing  request  the  commissioner 
of  insurance  so  to  do,  he  shall  assume  charge  of  levying  and 
collection  from  such  premium  and  dividends  as  may  from 
time  to  time  be  necessary  to  pay  the  sums  which  shall  become 
due  their  employes,  or  dependents  of  their  employes,  as  com- 
pensation under  the  provisions  of  this  act,  and  also  the  ex- 
pense of  conducting  the  administration  of  such  funds;  and 
shall  disburse  the  same  to  the  persons  entitled  to  receive 
such  compensation  under  the  provisions  of  this  act :  Provided, 
however.  That  neither  the  commissioner  of  insurance  nor 
the  State  of  Michigan  shall  become  or  be  liable  or  responsible 
for  the  payment  of  claims  for  compensation  under  the  pro- 
visions of  this  act  beyond  the  extent  of  the  funds  so  collected 
and  received  by  him  as  hereinafter  provided. 

Sec.  2.  The  commissioner  of  insurance  shall  immediately 
upon  assuming  the  administration  of  the  collection  and 
disbursement  of  the  moneys  referred  to  in  the  preceding 


TEXTS   OF   COMPENSATION   ACTS  977 

Michigan 

section,  cause  to  be  created  in  the  state  treasury  a  fund  to 
be  known  as  "accident  fund."  Each  such  employer  shall 
contribute  to  this  fund  to  the  extent  of  such  premiums  or 
assessments  as  the  commissioner  shall  deem  necessary  to 
pay  the  compensation  accruing  under  this  act  to  employes 
of  such  employers  or  to  their  dependents,  which  premiums 
and  assessments  shall  be  levied  in  the  manner  and  proportion 
hereinafter  set  forth.  The  commissioner  of  insurance  shall 
give  a  good  and  sufficient  bond  in  the  sum  of  twenty-five 
thousand  dollars,  executed  by  some  surety  company  author- 
ized to  do  business  in  the  State  of  Michigan,  covering  the 
collection  and  disbursement  of  all  monej-s  that  may  come  into 
his  hands  under  the  provisions  of  this  act.  The  premium 
on  said  bond  shall  be  paid  out  of  the  general  funds  of  the 
State  on  an  order  of  the  auditor  general.  Said  bond  must 
be  approved  by  the  board  of  state  auditors. 

Sec.  3.  It  is  the  intention  that  the  amounts  raised  for 
such  fund  shall  ultimately  become  neither  more  nor  less  than 
self-supporting,  and  the  premiums  or  assessments  levied  for 
such  purpose  shall  be  subject  to  readjustment  from  time  to 
time  by  the  commissioner  of  insurance  as  may  become 
necessary. 

Sec.  4.  The  commissioner  of  insurance  may  classify  the 
establishments  or  works  of  such  employers  in  groups  in 
accordance  with  the  nature  of  the  business  in  which  they  are 
engaged  and  the  probable  risk  of  injury  to  their  employes 
under  existing  conditions.  He  shall  determine  the  amount 
of  the  premiums  or  assessments  which  such  employers  shall 
pay  to  said  accident  fund,  and  may  prescribe  when  and  in 
what  manner  such  premiums  and  assessments  shall  be  paid, 
and  may  change  the  amount  thereof  both  in  respect  to  any 
or  all  of  such  employers  from  time  to  time,  as  circumstances 
may  require,  and  the  condition  of  their  respective  plants, 
establishments  or  places  of  work  in  respect  to  the  safety 
of  their  employes  may  justify,  but  all  such  premiums  or  assess- 
62 


978    Bradbury's  workmen's  compensation  law 

Michigan 

merits  shall  be  levied  on  a  basis  that  shall  be  fair,  equitable 
and  just  as  among  such  employers.  At  the  beginning  of  each 
fiscal  year  it  shall  be  the  duty  of  the  commissioner  of  insur- 
ance to  call  for  the  required  payment  of  premiums  in  such 
amounts  as  shall,  together  with  any  balance  in  the  accident 
fund,  in  his  judgment,  and  subject  to  the  approval  of  said 
industrial  accident  board,  be  sufficient  to  enable  him  to  pay 
all  sums  which  may  become  due  and  payable  to  the  employes 
of  any  such  employer  who  has  become  subject  to  the  pro- 
visions of  part  five  of  this  act,  and  also  the  expenses  of  ad- 
ministering such  funds  during  the  following  year. 

Sec.  5.  If  any  employer  shall  make  default  in  the  pay- 
ment of  any  contribution,  premium  or  assessment  required 
as  aforesaid  by  the  commissioner  of  insurance,  the  sum  due 
shall  be  collected  by  an  action  at  law  in  the  name  of  the  State 
as  plaintiff,  and  such  right  of  action  shall  be  in  addition 
to  any  other  right  of  action  or  remedy.  In  case  any  injury 
happens  to  any  of  the  workmen  of  such  employer  during  the 
period  of  any  default  in  the  payment  of  any  such  premium, 
assessment  or  contribution,  the  defaulting  employer  shall 
not,  if  such  default  be  after  demand  for  payment,  be  entitled 
to  the  benefits  of  this  act,  but  shall  be  liable  to  suit  by  the 
injured  workman,  or  by  his  dependents  in  case  death  re- 
sults from  such  accident,  as  if  he  had  not  elected  to  become 
subject  to  this  act.  In  case,  however,  the  amount  actually 
collected  in  by  such  injured  workman  or  his  dependents 
shall  equal  or  exceed  the  compensation  to  which  the  plaintiff 
therein  would  be  entitled  under  this  act,  the  plaintiff  shall 
not  be  paid  anything  out  of  said  accident  fund.  If  the  said 
amount  shall  be  less  than  such  compensation  under  this 
act,  the  accident  fund  shall  contribute  the  amount  of  the 
deficiency.  The  person  so  entitled  under  the  provisions  of 
this  section  shall  have  the  choice,  to  be  exercised  before  suit, 
of  proceeding  by  suit  or  taking  under  this  act.  If  such  person 
shall  take  under  this  act,  the  cause  of  action  against  the 


TEXTS   OP   COMPENSATION   ACTS  979 

Michigan 

employer  shall  be  assigned  to  the  State  for  the  benefit  of  the 
accident  fund. 

Sec.  6.  Any  employer  subject  to  the  provisions  of  part 
five  of  this  act,  who  has  complied  with  all  the  rules,  regula- 
tions and  demands  of  the  industrial  accident  board  and  the 
commissioner  of  insurance,  may  withdraw  therefrom  at  the 
expiration  of  the  period  of  one  year  for  which  he  has  elected 
to  become  subject  to  the  provisions  of  this  act:  Provided, 
however,  That  he  shall  give  written  notice  of  such  withdrawal 
to  said  commissioner  of  insurance  at  least  thirty  days  before 
the  expiration  of  such  period:  And  Provided  further,  That 
if  at  the  time  of  such  withdrawal  liability  may  exist  against 
employer  for  compensation  to  employes  who  have  been 
theretofore  killed  or  injured,  as  hereinbefore  provided, 
such  employer  shall  either  relieve  himself  and  the  commis- 
sioner of  insurance  from  such  liability  in  the  manner  pro- 
vided in  part  four,  section  four  of  this  act,  or  shall  other- 
wise protect  and  indemnify  said  commissioner  of  insurance 
against  such  liability  in  such  reasonable  manner  as  he  may 
require. 

Sec.  7.  In  case  any  controversy  shall  arise  between  the 
commissioner  of  insurance  and  any  employer  subject  to  the 
provisions  of  part  five  of  this  act,  relative  to  any  rule  or 
regulation  adopted  by  said  commissioner  of  insurance,  or 
any  decision  made  by  him  in  respect  to  the  collection,  admin- 
istration and  disbursement  of  such  funds,  or  in  case  any 
controversy  shall  arise  between  any  employe  claiming  com- 
pensation under  the  provisions  of  this  act  and  said  com- 
missioner of  insurance,  all  such  controversies  of  every  kind 
and  nature  shall  be  subject  to  review  in  like  manner  and  with 
the  same  force  and  effect  in  all  respects  as  is  heretofore  pro- 
vided in  respect  to  differences  arising  through  the  adminis- 
tration of  such  funds  by  the  employer,  or  by  a  liability  in- 
surance company  or  by  an  employers'  mutual  insurance 
association. 


980    Bradbury's  workmen's  compensation  law 

Michigan 

Sec.  8.  The  books,  records  and  pay  rolls  of  each  employer 
subject  to  the  provisions  of  part  five  of  this  act  shall  always 
be  open  to  inspection  by  the  commissioner  of  insurance,  or 
his  duly  authorized  agent  or  representative,  for  the  purpose 
of  ascertaining  the  correctness  of  the  amount  of  the  pay  roll 
reported,  the  number  of  men  employed,  and  such  other  in- 
formation as  said  commissioner  may  require  in  the  adminis- 
tration of  said  funds.  Refusal  on  the  part  of  any  such  em- 
ployer to  submit  said  books,  records  and  pay  rolls  for  such 
inspection,  shall  subject  the  offending  employer  to  a  penalty 
of  fifty  dollars  for  each  offense,  to  be  collected  by  civil  action 
in  the  name  of  the  State  and  paid  into  the  accident  fund, 
and  the  individual  who  shall  personally  give  such  refusal 
shall  be  guilty  of  a  misdemeanor. 

Sec.  9.  The  commissioner  of  insurance  shall  issue  proper 
receipts  for  all  moneys  so  collected  and  received  from  em- 
ployers, as  aforesaid,  shall  take  receipts  for  all  sums  paid 
to  employes  for  compensation  under  the  provisions  of  this 
act,  and  shall  keep  full  and  complete  reqords  of  all  business 
transacted  by  him  in  the  administration  of  such  funds. 
He  may  employ  such  deputies  and  assistants  and  clerical 
help  as  may  be  necessary,  and  as  the  board  of  state  auditors 
may  authorize,  for  the  proper  administration  of  said  funds 
and  the  performance  of  the  duties  imposed  upon  him  by  the 
provisions  of  this  act,  at  such  compensation  as  may  be  fixed 
by  said  board  of  state  auditors,  and  may  also  remove  them. 
The  commissioner  of  insurance  and  such  deputies  and  assist- 
ants shall  be  entitled  to  receive  from  the  State  their  actual 
and  necessary  expenses  while  traveling  on  the  business  of 
the  board,  but  all  such  salaries  and  expenses  so  authorized 
by  the  provisions  of  this  act  shall  be  charged  to  and  paid 
out  of  said  accident  fund.  He  shall  include  in  his  annual 
report  a  full  and  correct  statement  of  the  administration  of 
such  fund,  showing  its  financial  status  and  outstanding 
obligations,  the  claims  and  the  amount  paid  on  each  claim, 


TEXTS   OF   COMPENSATION   ACTS  981 

Michigan 

claims  not  paid,  claims  contested  and  why,  and  general 
statistics  in  respect  to  all  business  transacted  by  him  under 
the  provisions  of  this  act. 

Sec.  10.  Disbursements  from  said  accident  fund  shall  be 
made  only  upon  warrants  approved  by  the  board  of  state 
auditors  upon  vouchers  therefor  transmitted  to  it  by  the 
commissioner  of  insurance.  If  at  any  time  there  shall  not 
be  sufficient  money  in  said  fund  wherewith  to  pay  the  same, 
the  employer  on  account  of  whose  workmen  it  was  that  such 
warrant  was  drawn  shall  pay  the  same,  and  he  shall  be  cred- 
ited upon  his  next  following  contribution  to  such  fund  the 
amount  so  paid,  with  interest  thereon  at  the  legal  rate, 
from  the  date  of  such  payment  to  the  date  such  next  follow- 
ing contribution  becomes  payable,  and  if  the  amount  of  the 
credit  shall  exceed  the  amount  of  the  contribution,  he  shall 
be  repaid  such  excess. 

Sec.  11.  If  this  act  shall  be  thereafter  repealed,  all  moneys 
which  are  in  the  accident  fund  at  the  time  of  such  repeal 
shall  be  subject  to  disposition  under  the  direction  of  the 
circuit  court  for  the  county  of  Ingham,  with  due  regard, 
however,  to  the  obligation  incurred  and  existing  to  pay 
compensation  under  the  provisions  of  this  act. 

Part  VI 

MISCELLANEOUS  PROVISIONS 

Section  1.  If  the  employ^,  or  his  dependents,  in  case  of 
his  death,  of  any  employer  subject  to  the  provisions  of  this 
act  files  any  claim  with,  or  accepts  any  pajTnent  from  such 
employer,  or  any  insurance  company  carrying  such  risks,  or 
from  the  commissioner  of  insurance  on  account  of  personal 
injury,  or  makes  any  agreement,  or  submits  any  question  to 
arbitration  under  this  act,  such  action  shall  constitute  a  re- 
lease to  such  employer  of  all  claims  or  demands  at  law,  if  Miy, 
arising  from  such  injury. 


982    Bradbury's  workmen's  compjensation  law 

Michigan 

Sec.  2.  If  the  provisions  of  this  act  relating  to  compensa- 
tion for  injuries  to  or  death  of  workmen  shall  be  repealed  or 
adjudged  invalid  or  unconstitutional,  the  period  intervening 
between  the  occurrence  of  an  injury  or  death  and  such  repeal, 
or  the  final  adjudication  of  invalidity,  shall  not  be  computed 
as  a  part  of  the  time  limited  by  law  for  the  commencement 
of  any  action  relating  to  such  injury  or  death,  but  the  amount 
of  any  compensation  which  may  have  been  paid  for  any  such 
injury  shall  be  deducted  from  any  judgment  for  damages 
recovered  on  account  of  such  injury. 

Sec.  3.  This  act  shall  not  affect  any  cause  of  action  existing 
or  pending  before  it  went  into  effect. 

Sec.  4.  The  provisions  of  this  act  shall  apply  to  employers 
and  workmen  engaged  in  intrastate  commerce,  and  also  to 
those  engaged  in  interstate  or  for-eign  commerce,  for  whom  a 
rule  of  liability  or  method  of  compensation  has  been  or  may 
be  established  by  the  congress  of  the  United  States,  only  to 
the  extent  that  their  mutual  connection  with  intrastate  work 
may  and  shall  be  clearly  separable  and  distinguishable  from 
interstate  or  foreign  commerce,  except  that  any  such  em- 
ployer and  any  of  his  workmen  working  only  in  this  State, 
may,  subject  to  the  approval  of  the  industrial  accident 
board,  and  so  far  as  not  forbidden  by  any  act  of  congress, 
voluntarily  accept  and  become  bound  by  the  provisions  of 
this  act  in  like  manner  and  with  the  same  force  and  effect  in 
all  respects  as  is  hereinbefore  provided  for  other  employers 
and  their  workmen. 

Sec.  5.  All  acts  or  parts  of  acts  inconsistent  with  this  act 
are  to  be  deemed  replaced  by  this  act,  and  to  that  end  are 
hereby  repealed. 

Sec.  6.  The  legislature  intends  that  part  five  of  this  act 
shall  be  deemed  separate  from  the  other  parts  thereof,  so 
that  if  said  part  five  should  fail  or  V)e  adjudged  invalid  or 
unconstitutional  it  shall  in  no  way  affect  any  other  part  of 
this  act. 


TEXTS  OF  COMPENSATION   ACTS  983 

Michigan 


Sec.  7.  To  carry  out  the  provisions  of  this  act  there  is 
hereby  appropriated  for  the  expenses  of  the  industrial  acci- 
dent board  for  the  fiscal  year  ending  June  thirtieth,  nineteen 
hundred  thirteen,  and  annually  thereafter,  the  sum  of 
twenty-five  thousand  dollars.  The  auditor  general  shall 
add  to  and  incorporate  into  the  state  tax  the  sum  of  twenty- 
five  thousand  dollars  annually,  which  said  sum  shall  be  in- 
cluded in  the  state  taxes  apportioned  by  the  auditor  general 
on  all  taxable  property  of  the  State,  to  be  levied,  assessed  and 
collected  as  other  state  taxes,  and  when  so  assessed  and 
collected  to  be  paid  into  the  general  fund  to  reimburse  said 
fund  for  the  appropriation  made  by  this  act. 

Sec.  8.  The  provisions  of  this  act  shall  take  effect  and  be 
in  force  from  and  after  September  first,  nineteen  hundred 
twelve. 

Approved  March  20,  1912. 

Act  Authorizing  Formation  of  Mutual  Liability 
Insurance  Companies 

An  act  to  authorize  the  formation  of  mutual  insurance  com- 
panies whose  members  may  be  composed  of  persons,  firms, 
partnership  associations  or  corporations  who  have  elected 
to  come  under  the  law  relating  to  employers'  liability  and 
workmen's  compensation. 
The  People  of  the  State  of  Michigan  enact : 
Section  1.  Any  number  of  persons,   firms,   partnership 
associations  or  corporations,  not  less  than  five,  who  have  be- 
come subject  to  the  provisions  of  the  laws  of  Michigan  re- 
lating to  employers'  liability  and  workmen's  compensation, 
and  who  own  or  operate  mills,   factories,   manufacturing 
establishments  of  any  and  every  kind,   buildings,   stores, 
hotels  and  mercantile  establishments,  or  any  combination  of 
manufacturing   and   mercantile   business,    mines,    quarries, 
blast  furnaces,  railroads  and  transportation  companies,  tel- 


984    Bradbury's  workmen's  compensation  law 

Michigan 

egraph  and  telephone  companies,  or  who  are  engaged  in  the 
production  or  supplying  of  gas  and  electricity  for  lighting, 
fuel,  power,  or  other  purposes;  printing,  publishing  and  book- 
making,  or  in  carrying  on  any  other  lawful  business  in  the 
State  of  Michigan,  may,  subject  to  the  approval  of  the  in- 
dustrial accident  board  of  Michigan,  associate  together  and 
form  an  incorporated  company  for  the  purpose  of  mutual 
insurance  of  its  members  against  liability  for  any  and  all 
payments  which  may  become  due  and  payable  to  their  em- 
ployes under  the  provisions  of  law  for  death  benefits,  dis- 
ability benefits,  or  otherwise,  as  hereinbefore  set  forth: 
Provided,  however.  That  the  persons,  firms  or  corporations 
so  associating  themselves  together  for  the  organization  of 
such  company  shall  have  on  their  pay  rolls  at  that  time  not 
less  than  five  thousand  employes:  And  Provided  further. 
That  the  industrial  accident  board  of  Michigan  may  in  its 
discretion  limit  the  employers  forming  or  joining  in  the  or- 
ganization of  any  such  company  to  those  engaged  in  indus- 
trial operations  of  the  same  general  character,  or  in  operations 
in  which  the  risks  and  hazards  incurred  by  their  employes 
are  more  or  less  similar  in  nature  and  extent. 

Sec.  2,  Such  employers  so  associating  shall  prepare  in 
triplicate  articles  of  association  as  hereinafter  specified, 
which  shall  first  be  submitted  to  the  industrial  accident  board 
and  the  commissioner  of  insurance  for  their  approval,  and 
when  approved,  one  copy  thereof  shall  be  filed  in  the  office 
of  the  commissioner  of  insurance,  one  copy  in  the  office  of 
the  secretary  of  state  and  the  other  copy  with  the  county 
clerk  in  the  county  where  the  principal  office  of  such  com- 
pany will  be  maintained.  Such  articles  of  association  shall 
be  signed  by  all  the  incorporators,  and  shall  be  acknowledged 
by  them,  or  by  their  duly  authorized  officers  or  agents,  before 
some  officer  of  the  State  duly  authorized  to  take  acknowl- 
edgment of  deeds. 

Sec.  3.  Such  articles  of  association  shall  set  forth: 


TEXTS  OF   COMPENSATION   ACTS  985 

Michigan 

First.  The  names  of  the  persons,  firms,  partnership  asso- 
ciations and  corporations  associating  in  the  first  instance, 
their  respective  residences,  the  nature  of  the  business  in  which 
they  are  engaged,  and  the  number  of  persons  employed 
therein  by  each  of  them; 

Second.  That  each  and  all  of  such  incorporators  have 
elected,  with  the  approval  of  the  industrial  accident  board,  to 
become  subject  to  the  provisions  of  this  act,  and  are  forming 
this  corporation  for  the  purpose  of  mutually  insuring  their 
members  against  liability  for  any  and  all  payments  which 
may  become  due  and  payable  to  their  employes  under  the 
provisions  of  this  act; 

Third.  The  name  by  which  such  corporation  shall  be 
known; 

Fourth.  The  period  for  which  the  company  is  incorporated, 
which  shall  not  exceed  thirty  years; 

Fifth.  The  number  of  directors,  which  shall  be  not  less 
than  five,  nor  more  than  fifteen,  and  the  names  of  the  direct- 
ors for  the  first  year; 

Sixth.  The  place  where  the  office  of  the  company  shall  be 
located,  which  shall  be  within  the  State  of  Michigan. 

Sec.  4.  Any  company  formed  under  this  act  shall  be 
deemed  a  body  corporate  and  politic  in  fact  and  in  name,  and 
shall  be  subject  to  all  the  provisions  of  the  statutes  in  relation 
to  corporations,  so  far  as  they  are  applicable. 

Sec.  5.  The  incorporators  of  any  company  organized  under 
this  act  shall  have  power  to  make  such  by-laws  not  incon- 
sistent with  the  constitution  or  laws  of  this  State,  as  may 
be  deemed  necessary  for  the  government  of  its  officers  and 
members,  and  the  conduct  of  its  affairs,  the  admission  of  new 
members  and  regulations  governing  the  assessment  and  col- 
lection of  premiums  and  assessments;  but  such  by-laws  shall 
not  become  operative  until  a  true  copy  thereof  shall  have 
been  filed  with  and  approved  by  the  industrial  accident  board. 

Sec.  6.  Upon  the  approval  of  the  articles  of  association  of 


986    Bradbury's  workmen's  compensation  law 

Michigan 

such  company  by  the  industrial  accident  board  and  the  com- 
missioner of  insurance,  and  upon  filing  the  same  with  the 
commissioner  of  insurance,  with  the  secretary  of  state  and 
with  the  county  clerk  of  the  county  where  the  principal 
office  of  said  company  will  be  kept,  the  commissioner  of 
insurance  shall  grant  a  license  to  such  company  to  issue 
policies. 

Sec.  7.  The  board  of  directors  shall  determine  the  amount 
of  the  premiums  of  assessments  which  the  members  of  such 
company  shall  pay  for  such  insurance,  in  accordance  with 
the  nature  of  the  business  in  which  they  are  engaged,  and  the 
probable  risk  of  injury  to  their  employes  under  existing  con- 
ditions. The  board  may  also  prescribe  when  and  in  what 
manner  such  premiums  shall  be  paid,  and  may  change  the 
amount  thereof  both  in  respect  to  any  or  all  of  its  members 
from  time  to  time,  as  circumstances  may  require  and  the 
conditions  of  their  respective  plants,  establishments  or 
places  of  work  in  respect  to  the  safety  of  their  employes  may 
justify,  but  all  such  premiums  or  assessments  shall  be  levied 
on  a  basis  that  shall  be  fair,  equitable  and  just  as  among  such 
members;  and  it  shall  be  the  duty  of  such  board  of  directors 
at  the  beginning  of  each  fiscal  year,  to  call  for  the  required 
payment  of  premiums  in  such  amount  as  shall,  in  the  judg- 
ment of  said  industrial  accident  board,  be  sufficient  to  enable 
such  company  to  pay  all  sums  which  may  become  due  and 
payable  during  the  following  year,  to  the  employes  or  any  of 
its  members  under  the  provisions  of  this  act,  and  also  the 
expenses  of  conducting  its  business. 

Sec.  8.  The  company  shall  in  its  by-laws  and  policies  fix 
the  contingent  mutual  liability  of  its  members  for  the  pay- 
ment of  losses  and  expenses  not  provided  for  by  its  cash 
funds.  Such  contingent  liability  of  a  member  shall  not  be 
less  than  an  amount  equal  to  the  liability  imposed  by  this 
act  and  of  the  act  to  provide  compensation  for  the  accidental 
injury  or  death  of  employes. 


TEXTS   OF   COMPENSATION   ACTS  987 

Michigan 

Sec.  9.  If  the  company  is  not  possessed  of  cash  funds  so 
that  it  has  unearned  premiums  for  the  payment  of  incurred 
losses  and  expenses,  it  shall  make  an  assessment  for  the 
amount  needed  to  pay  such  losses  and  expenses  upon  the 
members  liable  to  assessment  therefor  in  proportion  to  their 
several  liability.  Every  member  shall  pay  his  proportional 
part  of  any  assessment  which  may  be  laid  by  the  board  of 
directors,  in  accordance  with  the  law  and  his  contract,  on 
account  of  injuries  sustained  and  expenses  incurred  while  he 
is  a  member  of  such  company. 

Sec.  10.  The  board  of  directors  may,  from  time  to  time, 
by  vote,  fix  and  determine  the  amount  to  be  paid  as  a  divi- 
dend upon  policies  expiring  during  each  year  after  retaining 
sufficient  sums  to  pay  all  the  compensation  which  may  be 
payable  on  account  of  injuries  sustained  and  expenses  in- 
curred. All  premiums,  assessments  and  dividends  shall  be 
fixed  and  determined  in  accordance  with  the  experience  of 
said  company,  but  all  the  funds  of  the  company,  and  the 
contingent  liability  of  all  the  members  thereof,  shall  be 
available  for  the  payment  of  any  claim  against  the  com- 
pany. 

Sec.  11.  Any  proposed  premium  or  assessment  required  of, 
or  any  dividend  or  distribution  made  to  the  members,  shall 
be  filed  with  the  industrial  accident  board,  and  shall  not 
take  effect  until  approved  by  said  board  after  such  investi- 
gation as  it  may  deem  necessary. 

Sec.  12.  The  board  of  directors  may  make  and  enforce 
reasonable  rules  and  regulations,  not  in  conflict  with  the 
laws  of  this  State,  for  the  prevention  of  injuries  on  the  prem- 
ises of  members,  and  for  this  purix)se  the  inspectors  of  the 
company  shall  have  free  access  to  all  such  premises  during 
regular  working  hours.  Any  member  neglecting  to  provide 
suitable  safety  appliances  as  provided  by  law  or  as  re- 
quired by  the  board  of  directors  may  be  expelled  by  a  ma- 
jority vote  of  all  the  members.    Any  member,  or  employe 


988    Bradbury's  workmen's  compensation  law 

Michigan 

of  any  member,  aggrieved  by  any  such  rule  or  regulation, 
may  petition  the  industrial  accident  board  for  review,  and 
it  may  affirm,  amend  or  annul  the  rule  or  regulation. 

Sec.  13.  Any  member  of  said  company,  who  has  complied 
with  all  its  rules,  regulations  and  demands,  may  withdraw 
therefrom  at  the  expiration  of  the  period  of  one  year  for 
which  he  has  elected  to  become  subject  to  the  provisions  of 
this  act:  Provided,  however.  That  he  shall  give  written 
notice  of  such  withdrawal  to  said  company  at  least  thirty 
days  before  the  expiration  of  such  period:  And  Provided 
further,  That  if  at  the  time  of  such  withdrawal  liability 
may  exist  against  such  member  and  against  said  company 
for  compensation  to  employes  who  have  been  theretofore 
killed  or  injured  as  hereinbefore  provided,  such  member 
shall  either  relieve  himself  and  said  company  from  such 
liability  in  the  manner  provided  in  part  four,  section  four 
of  this  act,  or  shall  otherwise  protect  and  indemnify  said 
company  against  such  liability  in  such  reasonable  manner 
as  may  be  required  by  the  board  of  directors. 

Sec.  14.  The  business  year  of  every  company  organized, 
existing  or  doing  business  in  this  State,  under  and  by  virtue 
of  the  provisions  of  this  act,  shall  close  on  the  thirty-first 
day  of  December  in  each  year,  and  every  such  company 
shall  within  sixty  days  thereafter  prepare,  under  oath  of 
its  president  and  secretary,  and  file  in  the  office  of  the  com- 
missioner of  insurance  of  this  State,  and  also  with  said  in- 
dustrial accident  board,  a  detailed  statement  showing  its 
assets  and  how  invested,  liabilities,  receipts  from  premiums 
and  all  other  sources,  an  itemized  account  of  all  expendi- 
tures, salaries  of  officers,  number  of  policies  or  certificates 
in  force,  amount  insured  thereby,  claims  paid,  and  amount 
paid  on  each  claim,  claims  reported  but  not  paid,  claims 
contested  and  why,  and  shall  answer  such  other  questions 
as  the  commissioner  of  insurance,  who  shall  furnish  blanks 
for  that  purpose,  may  require,  in  order  to  ascertain  its  true 


TEXTS   OF   COMPENSATION   ACTS  989 

Nevada 

financial  condition.  The  commissioner  shall  publish  such 
annual  statements  in  detail  in  his  annual  report. 

Sec.  15.  If  any  officer  of  the  company  shall  falsely  make 
oath  to  any  certificate  required  to  be  filed  with  the  insurance 
commissioner,  he  shall  be  guilty  of  perjury. 

Sec.  16.  Any  such  company  formed  under  this  act  shall 
have  power  to  amend  its  articles  of  association  and  by-laws 
at  its  regular  annual  meeting  or  at  special  meetings  called 
and  held  as  provided  in  its  by-lawo,  but  said  amendments 
shall,  before  they  become  operative,  be  approved  and  filed 
in  the  same  manner  as  the  original  articles  and  by-laws. 

Sec.  17.  Any  such  company  formed  under  this  act  shall 
have  power  to  own,  hold  and  acquire  such  real  and  personal 
property  as  shall  be  necessary  for  the  transaction  of  its 
business. 

Sec.  18.  Any  company  formed  under  this  act  may  sue 
and  be  sued  in  any  court  of  law  or  equity,  with  the  same 
rights  and  obligations  as  a  natural  person,  and  in  addition 
to  the  powers  hereinbefore  enumerated,  shall  possess  and 
exercise  all  such  rights  and  powers  as  are  necessarily  inci- 
dental to  the  exercise  of  the  powers  expressly  granted 
herein. 

Approved  March  20,  1912. 

NEVADA 

(L.  1911,  c.  183) 

An  act  determining  certain  employments  and  industries  to 
be  especially  dangerous,  establishing  a  system  of  compen- 
sation for  accidents  to  workmen  engaged  therein,  requiring 
employers  or  contractors  carrying  on  such  industries  to 
pay  compensation,  entitling  injured  workmen  or  their 
legal  representatives  to  receive  such  compensation,  fixing 
the  amount  of  same  and  the  manner  of  payment,  fixing  the 
time  within  which  claims  for  compensation  must  be  made, 


990    Bradbury's  workmen's  compensation  law 

Nevada 

prescribing  the  manner  and  method  of  giving  notice  to  such 
owner  or  contractor  of  such  accident,  providing  for  the 
manner  of  setthng  disputed  claims  by  arbitration,  provid- 
ing for  their  final  determination  by  courts  of  justice,  and 
granting  to  courts  of  justice  certain  additional  powers  in 
proceedings  under  this  act,  determining  what  persons  shall 
be  liable  under  this  act. 
Approved  March  24,  1911. 

The  people  of  the  State  of  Nevada,  represented  in  Senate 
and  Assembly,  do  enact  as  follows: 

Section  1.  If  in  any  employment  to  which  this  act  applies 
personal  injury  disabling  a  workman  from  his  regular  service 
for  more  than  ten  days,  or  death  by  accident,  arising  out  of 
and  in  the  course  of  employment  is  caused  to  a  workman,  the 
workman  so  injured,  or  in  case  of  death,  the  member  of  his 
family,  as  hereinafter  defined,  shall  be  entitled  to  receive 
from  his  employer,  and  the  said  employer  shall  be  liable  to 
pay,  the  compensation  provided  for  in  this  act;  provided,  that 
recovery  hereunder  shall  not  be  barred  where  such  employe 
may  have  been  guilty  of  contributory  negligence  where  such 
contributory  negligence  is  slight  and  that  of  the  employer  is 
gross  in  comparison,  but  in  which  event  the  compensation 
may  be  diminished  in  proportion  to  the  amount  of  negligence 
attributable  to  such  employe,  and  it  shall  be  conclusively 
presumed  that  such  employ^  was  not  guilty  of  contributory 
negligence  in  any  case  where  the  violation  of  any  statute 
enacted  for  the  safety  of  employes  contributed  to  such  em- 
ploye's injury;  and  it  shall  not  be  a  defense:  (1)  That  the 
employ^,  either  expressly  or  impliedly  assumed  the  risk  of  the 
hazard  complained  of;  (2)  That  the  injury  or  death  was 
caused  in  whole  or  in  part  by  the  want  of  ordinary  or  reason- 
able care  of  a  fellow  servant.  No  contract,  rule  or  regulation 
shall  exempt  the  employer  from  any  of  the  provisions  of  the 
preceding  section  of  this  act. 
Sec.  2.  "Employer"  includes  any  body  of  persons  cor- 


TEXTS   OF   COMPENSATION   ACTS  991 

Nevada 

porate  or  incorporate  and  the  legal  personal  representative  of 
a  deceased  employer.  "Workman"  includes  every  person 
who  is  engaged  in  an  employment  to  which  this  act  applies, 
whether  by  way  of  manual  labor  or  otherwise,  and  where  his 
agreement  is  one  of  service  or  apprenticeship  or  otherwise, 
and  is  expressed  or  implied,  is  oral  or  in  writing.  Any 
reference  to  a  workman  who  has  been  injured  shall,  where  the 
workman  is  dead,  include  a  reference  to  his  legal  personal 
representative  or  to  his  dependents  or  other  person  to  whom 
compensation  is  payable.  "Dependents"  means  wife, 
father,  mother,  husband,  sister,  brother,  child  or  grandchild; 
provided,  that  they  were  wholly  or  partly  dependent  upon 
the  earnings  of  the  workman  at  the  time  of  his  death. 

Sec.  3.  This  act  shall  apply  to  workmen  engaged  in 
manual  or  mechanical  labor  in  the  following  employments 
within  this  State,  each  of  which  is  hereby  determined  to  be 
especially  dangerous,  in  which  from  the  nature,  condition  or 
means  of  prosecution  of  the  work  therein,  extraordinary 
risks  to  the  life  and  limb  of  workmen  engaged  therein  are  in- 
herent, necessarily  or  substantially  unavoidable,  and  to  each 
of  which  employments  it  is  deemed  necessary  to  establish  a 
new  system  of  compensation  for  accidents  to  workmen. 

(a)  The  erection  or  demolition  of  any  bridge  or  building  in 
which  there  is,  or  in  which  the  plans  or  specifications  require 
iron  or  steel  framework; 

(6)  The  operation  of  elevators,  elevating  machines  or 
derricks  or  hoisting  apparatus  used  within  or  on  the  outside 
of  any  bridge  or  building  for  the  conveying  of  material  in  con- 
nection with  the  erection  or  demolition  of  such  bridge  or 
building; 

(c)  Work  on  scaffolds  of  any  kind  elevated  twenty  feet  or 
more  above  the  ground,  water  or  floor  beneath,  in  the  erec- 
tion, construction,  painting,  alteration  or  repair  of  buildings, 
bridges  or  structures; 

(d)  Construction,  operation,  alteration,  or  repair  of  wires, 


992    Bradbury's  workmen's  compensation  law 

Nevada 

cables,  switchboards  or  apparatus  charged  with  electric 
current; 

(e)  The  operation  on  railroads  of  locomotives,  engines, 
trains,  motors  or  cars  propelled  by  gravity,  steam,  electricity 
or  other  mechanical  power,  or  the  construction  or  repairs  of 
railroad  tracks  and  roadbeds  over  which  such  locomotives, 
engines,  trains,  motors,  or  cars  are  operated; 

(/)  Construction,  operation,  alteration,  or  repairs  of  loco- 
motives, engines,  trains,  motors  or  cars  in  or  about  the  shops, 
round-houses,  or  other  places,  where  the  same  is  done; 

ig)  Construction,  operation,  alteration  or  repairs  to  mills, 
smelters  or  mines,  including  every  shaft  or  pit  in  the  course  of 
being  sunk,  and  every  crosscut,  drift,  station,  winze,  level  or 
inclined  planes  through  which  workmen  pass  to  and  from 
work,  and  all  works,  machinery,  tramways,  ladders  or  pas- 
sages, both  below  ground  and  above  ground,  in  and  adjacent 
to  any  mine; 

(h)  All  work  necessitating  dangerous  proximity  to  gun- 
powder, blasting  powder,  dynamite  or  any  other  explosives, 
where  the  same  are  used  as  instrumentalities  of  the  industry; 

(i)  The  construction  of  tunnels. 

The  employers  to  whom  this  act  shall  apply  shall  be  any 
person  or  persons,  association,  such  industry  as  aforesaid. 

Sec.  4.  Notice  of  accidents  must  be  given  partnership  or 
corporation  carrying  on  any  to  the  employer  as  soon  as 
practicable  after  the  happening  thereof,  and  the  claim  for 
compensation  with  respect  to  such  accident  within  six  months 
from  the  occurrence  of  such  accident  causing  the  injury,  or  in 
case  of  death,  within  six  months  from  the  time  of  death;  pro- 
vided, always,  that  the  want  of,  or  any  defect  or  inaccuracy 
in,  such  notice  shall  not  be  a  bar  to  the  maintenance  of  such 
proceedings  if  it  is  found  in  the  proceedings  for  settling  the 
claim  that  the  employer  is  not  prejudiced  in  his  defense  by 
the  want,  defect  or  inaccuracy,  and  that  such  want,  defect  or 
inaccuracy  was  occasioned  by  mistake  or  other  reasonable 


TEXTS   OF   COMPENSATION   ACTS  993 

Nevada 

cause.  Notice  in  respect  of  an  injury  under  this  act  shall 
give  the  name  and  address  of  the  person  injured,  and  shall 
state  in  ordinary  language  the  cause  of  the  injury,  if  known, 
the  date  at  which  it  was  sustained,  and  shall  be  served  on 
the  employer,  or,  if  there  is  more  than  one  employer,  upon 
one  of  such  employers.  The  notice  may  be  served  by  de- 
livering the  same  to  or  at  the  residence  or  place  of  business 
of  the  person  upon  whom  it  is  to  be  served,  or  the  notice  may 
also  be  served  by  post,  by  a  registered  letter  addressed  to  the 
person  on  whom  it  is  to  be  served  at  his  last  known  place  of 
residence  or  place  of  business,  and  if  served  by  post  shall  be 
deemed  to  have  been  served  at  the  time  when  the  letter  con- 
taining the  same  would  have  been  delivered  in  the  ordinary 
course  of  post,  and  in  proving  the  service  of  such  notice  it 
shall  be  sufficient  to  prove  that  the  notice  was  properly 
addressed  and  registered.  Where  the  employer  is  a  body  of 
persons,  natural  or  artificial,  the  notice  may  also  be  served 
by  delivering  the  same  at,  or  by  sending  it  by  post  in  a  regis- 
tered letter  addressed  to  the  employer  at  the  office,  or,  if 
there  be  more  than  one  office,  any  one  of  the  offices  of  such 
body. 

Sec.  5.  The  amount  of  compensation  in  case  death  results 
from  injury,  or  for  death  accruing  within  five  years  as  a  re- 
sult of  injury,  shall  be: 

(a)  If  the  workman  leave  any  person  or  persons  who  at  the 
time  of  the  accident  were  wholly  dependent  upon  his  earnings, 
a  sum  equal  to  his  earnings  in  the  employment  of  the  same 
employer  during  the  three  years  next  preceding  the  injury, 
or  the  sum  of  two  thousand  dollars,  whichever  of  these  sums 
is  the  greater,  but  not  exceeding  in  any  case  three  thousand 
dollars;  provided,  that  the  total  sum  of  any  weekly  payments 
made  under  this  act  shall  be  deducted  from  such  sum ;  and  if 
the  period  of  the  workman's  employment  by  the  same  em- 
ployer has  been  less  than  the  said  three  years,  then  the 
amount  of  his  earnings  during  the  said  three  years  shall  be 

63 


994    Bradbury's  workmen's  compensation  law 

Nevada 

deemed  to  be  nine  hundred  and  thirty-six  times  his  average 
daily  earnings  during  the  period  of  his  actual  employment 
under  the  same  employer; 

(6)  If  the  workman  leave  only  person  or  persons  who  at 
the  time  of  the  accident  were  partly  dependent  upon  his 
earnings,  a  sum  equal  to  50  per  cent  of  the  amount  payable 
under  the  foregoing  provisions  of  this  section; 

(c)  If  the  workman  leave  no  person  at  the  time  of  the 
accident  who  was  dependent  upon  his  earnings,  the  reasonable 
expenses  of  his  medical  attendance  and  burial,  not  exceeding 
in  all  three  hundred  dollars. 

Whatever  sum  is  payable  under  this  section  in  case  of 
death  of  the  injured  workman  shall  be  paid  to  his  legal 
representatives  for  the  benefit  of  such  dependents,  and  if  he 
leaves  no  such  dependents,  then  to  the  public  administrator, 
for  the  benefit  of  the  person  or  persons  to  whom  the  expenses 
of  medical  attendance  and  burial  are  due. 

Sec.  6.  The  amount  of  compensation  in  case  of  total  or 
partial  disability  resulting  from  injury  shall  be: 

(a)  A  weekly  payment  during  the  disability,  beginning 
within  ten  days  after  the  injury,  60  per  cent  of  his  average 
weekly  earnings  in  such  employment  during  the  previous 
twelve  months  if  he  has  been  so  long  employed,  but  if  not, 
then  for  any  less  period  during  which  he  has  been  in  the 
employment  of  the  same  employer,  so  long  as  there  is  com- 
plete disability;  and  that  proportion  of  the  said  percentage 
which  the  depleted  earning  capacity  for  that  service  bears  to 
the  total  disability  when  the  injury  is  only  partial,  but  in  no 
event  shall  the  total  of  all  payments  under  this  act  exceed 
the  sum  of  three  thousand  dollars; 

(6)  In  addition  to  the  foregoing  payments,  if  the  injured 
person  lose  both  feet  or  both  hands,  or  one  foot  and  one  hand, 
or  both  eyes  or  one  eye  and  one  foot  or  one  hand,  he  shall 
receive,  during  a  full  period  of  five  years,  40  per  cent  of  his 
average  weekly  earnings,  or  if  he  lose  one  foot,  one  hand  or 


TEXTS   OF   COMPENSATION   ACTS  995 

Nevada 

one  eye,  the  additional  compensation  therefor  shall  be 
15  per  cent  of  his  average  weekly  earnings,  the  amount  of 
such  earnings  to  be  computed  in  the  same  manner  as  the 
foregoing  60  per  cent;  provided,  that  in  no  case  shall  all  the 
payments  received  herein  exceed  in  any  month  the  whole 
wages  earned  when  the  injury  occurs,  nor  shall  the  added 
percentages  continue  longer  than  to  make  all  payments 
aggregate  three  thousand  dollars. 

Sec.  7.  Any  workman  entitled  to  receive  weekly  payments 
under  this  act  is  required,  if  requested  by  the  employer,  to 
submit  himself  for  examination  by  a  duly  qualified  medical 
practitioner  or  surgeon  provided  and  paid  for  by  the  em- 
ployer, at  a  time  and  place  reasonably  convenient  for  the 
workman,  within  three  weeks  after  the  injury,  and  thereafter 
at  intervals  not  oftener  than  once  in  six  weeks.  A  copy  of 
the  report  of  the  examining  physician  shall  be  furnished  to 
the  workman.  If  a  dispute  then  exists  as  to  the  workman's 
condition  or  amount  of  weekly  compensation  such  dispute 
shall  be  determined  by  arbitration  under  this  act,  or  by 
judicial  procedure  as  hereinafter  provided;  provided,  also, 
that  any  and  all  disputes  arising  under  this  act  may  be  first 
submitted  to  a  board  of  arbitration,  and  in  case  of  failure  to 
settle  it,  resort  may  be  had  to  courts  of  justice. 

Sec.  8.  Arbitration  proceedings  shall  be  as  follows:  The 
employer  and  the  workman  may  each  choose  one  arbitrator, 
the  two  arbitrators  thus  chosen  shall  choose  a  third,  and  the 
three  arbitrators  shall  hear  the  facts  of  the  dispute  within 
three  months  after  having  been  chosen,  and  within  two 
weeks  thereafter,  render  a  decision,  which,  if  unanimous, 
shall  be  final  and  binding  on  both  parties. 

Sec.  9.  On  failure  of  the  board  of  arbitration  to  reach  an 
adjustment  of  the  dispute  above  referred  to,  either  party 
may  apply  to  a  court  of  competent  jurisdiction,  and  have  an 
adjudication  as  in  any  other  controversy.  And  the  findings 
and  judgment  of  the  court  shall  be  conclusive  on  all  parties 


996    Bradbury's  workmen's  compensation  law 

Nevada 

concerned.  Said  courts  may  compel  the  attendance  of 
witnesses  and  the  production  of  evidence,  as  in  all  other 
cases,  provided  for  by  law,  and  the  judgment  of  said  court 
may  continue  and  diminish  or  increase  the  weekly  payments, 
subject  to  the  maximum  provided  in  this  act.  The  prevailing 
party  in  any  action,  brought  under  the  provisions  of  this  act, 
shall  be  entitled  to  his  costs  of  suit  and  reasonable  attorney's 
fees;  provided,  that  nothing  in  this  act  shall  operate  to  defeat 
the  constitutional  right  of  appeal. 

Sec.  10.  If  any  employer  who  shall  be  the  principal, 
enters  into  a  contract  with  an  independent  contractor  to  do 
part  of  such  employer's  work,  or  if  such  contractor  enters 
into  a  contract  with  a  subcontractor  to  do  all  or  any  part  of 
the  work  comprised  in  such  contractor's  contract  with  the 
employer,  the  said  principal  shall  be  liable  to  pay  to  any 
workman  employed  in  the  execution  of  the  work,  any  com- 
pensation under  this  act,  which  he  would  have  been  liable  to 
pay  if  that  workman  had  been  immediately  employed  by 
him;  and  where  compensation  is  claimed  from  the  principal, 
then  reference  to  the  principal  shall  be  substituted  for  refer- 
ence to  the  employer,  except  the  amount  of  compensation 
shall  be  calculated  with  reference  to  the  earnings  of  the 
workman  under  the  contractor  or  employer  by  whom  he  is 
immediately  employed.  Where  such  principal  is  liable  to 
pay  compensation  he  shall  be  entitled  to  be  indemnified  by 
any  person  who  would  have  been  liable  to  pay  compensation 
to  the  workman  independently  of  this  section.  Nothing  in 
this  section  shall  be  construed  as  preventing  a  workman 
from  recovering  compensation  under  this  act,  from  the  con- 
tractor or  subcontractor,  instead  of  the  principal;  nor  shall 
this  section  apply  in  any  case  where  the  accident  shall  occur 
elsewhere  than  on  or  in  or  about  the  premises  on  which  the 
principal  has  undertaken  to  execute  the  work  or  which  are 
otherwise  under  his  control  or  management. 

Sec.  11.  Nothing  in  this  act  contained  shall  be  held  or 


TEXTS   OF   COMPENSATION   ACTS  997 

Nevada 

deemed  to  require  any  workman  or  his  personal  representa- 
tives to  proceed  under  its  terms  and  provisions  for  the  re- 
covery of  compensation  of  damages  for  death  or  accidental 
injury.  But  if  the  workman  or  his  personal  representatives 
shall  so  elect,  he  or  they  may  disregard  the  provisions  of  this 
act  and  may  pursue  any  other  remedy  at  law  for  the  recovery 
of  such  compensation  of  damages  for  or  on  account  of  such 
death  or  injury.  The  right  of  election  or  choice  of  remedies 
shall  be  exercised  solely  by  such  workman  or  his  representa- 
tives. 

Sec.  12.  A  claim  for  compensation  for  the  injury  or  death 
of  any  employe  or  any  reward  or  judgment  entered  thereon 
shall  be  entitled  to  a  preference  over  the  other  debts  of  the 
employer  if  and  to  the  same  extent  as  the  wages  of  such 
employe  shall  be  so  preferred,  but  this  section  shall  not  im- 
pair the  lien  of  any  judgment  entered  upon  any  award. 

Sec.  13.  The  making  of  a  lawful  claim  against  an  employer 
for  compensation  under  this  act  for  the  injury  or  death  of  his 
employ^  shall  operate  as  an  assignment  of  any  assignable 
cause  of  action  in  tort  which  the  employe  or  his  personal 
representative  may  have  against  any  other  party  for  such 
injury  or  death,  and  such  employer  may  enforce  in  his  own 
name  the  liability  of  such  other  party. 

Sec.  14.  Nothing  in  this  act  contained  shall  be  construed 
as  impairing  the  right  of  parties  interested  after  the  injury 
or  death  of  an  employ^  to  compromise  or  settle  upon  such 
terms  as  they  may  agree  upon  any  liability  which  may  be 
claimed  to  exist  under  this  act  on  account  of  such  injury  or 
death,  nor  as  conferring  upon  the  dependents  of  any  injured 
employ^  any  interest  which  he  may  not  divert  by  such  settle- 
ment or  for  which  he  or  his  estate  shall  in  the  event  of  such 
settlement  by  him  be  accountable  to  such  dependents  or  any 
of  them. 

Sec.  15.  This  act  shall  take  effect  July  1,  1911. 


998    Bradbury's  workmen's  compensation  law 

New  Hampshire 

NEW  HAMPSHIRE 

(L.  1911,  c.  163) 

An  Act  in  Relation  to  Employers'  Liability  and  Workmen'r. 
Compensation 

Section  1.  This  act  shall  apply  only  to  workmen  engaged 
in  manual  or  mechanical  labor  in  the  employments  described 
in  this  section,  which,  from  the  nature,  conditions  or  means 
of  prosecution  of  such  work,  are  dangerous  to  the  life  and 
limb  of  workmen  engaged  therein,  because  in  them  the  risks 
of  employment  and  the  danger  of  injury  caused  by  fellow 
servants  are  great  and  difficult  to  avoid,  (a)  The  opera- 
tion on  steam  or  electric  railroads  of  locomotives,  engines, 
trains  or  cars,  or  the  construction,  alteration,  maintenance 
or  repair  of  steam  railroad  tracks  or  roadbeds  over  which 
such  locomotives,  engines,  trains  or  cars  are  or  are  to  be 
operated.  (6)  Work  in  any  shop,  mill,  factory  or  other 
place  on,  in  connection  with  or  in  proximity  to  any  hoisting 
apparatus,  or  any  machinery  propelled  or  operated  by  steam 
or  other  mechanical  power  in  which  shop,  mill,  factory  or 
other  place  five  or  more  persons  are  engaged  in  manual  or 
mechanical  labor,  (c)  The  construction,  operation,  altera- 
tion or  repair  of  wires  or  lines  of  wires,  cables,  switch-boards 
or  apparatus,  charged  with  electric  currents,  (d)  All  work 
necessitating  dangerous  proximity  to  gunpowder,  blasting 
powder,  dynamite  or  any  other  explosives,  where  the  same 
are  used  as  instrumentalities  of  the  industry,  or  to  any 
steam  boiler  owned  or  operated  by  the  employer,  provided 
injury  is  occasioned  by  the  explosion  of  any  such  boiler  or 
explosive,  (e)  Work  in  or  about  any  quarry,  mine  or  foundry. 
As  to  each  of  said  employments  it  is  deemed  necessary  to 
establish  a  new  system  of  compensation  for  accidents  to 
workmen. 

Sec.  2.  If,  in  the  course  of  any  of  the  employments  above 


TEXTS   OF   COMPENSATION  ACTS  999 

New  Hampshire 

described,  personal  injury  by  accident  arising  out  of  and  in 
the  course  of  the  employment  is  caused  to  any  workman 
employed  therein,  in  whole  or  in  part,  by  failure  of  the  em- 
ployer to  comply  with  any  statute,  or  with  any  order  made 
under  authority  of  law,  or  by  the  negligence  of  the  employer 
or  any  of  his  or  its  officers,  agents  or  employes,  or  by  reason 
of  any  defect  or  insufficiency  due  to  his,  its  or  their  negligence 
in  the  condition  of  his  or  its  plant,  ways,  works,  machinery, 
cars,  engines,  equipment,  or  appliances,  then  such  employer 
shall  be  liable  to  such  workman  for  all  damages  occasioned 
to  him,  or,  in  case  of  his  death,  to  his  personal  representa- 
tives for  all  damages  now  recoverable  under  the  provisions 
of  chapter  191  of  the  Public  Statutes.  The  workman  shall 
not  be  held  to  have  assumed  the  risk  of  any  injury  due  to 
any  cause  specified  in  this  section;  but  there  shall  be  no 
liability  under  this  section  for  any  injury  to  which  it  shall 
be  made  to  appear  by  a  preponderance  of  evidence  that  the 
negligence  of  the  plaintiff  contributed.  The  damages  pro- 
vided for  by  this  section  shall  be  recovered  in  an  action  on  the 
case  for  negligence. 

Sec.  3.  The  provisions  of  section  2  of  this  act  shall  not 
apply  to  any  employer  who  shall  have  filed  with  the  com- 
missioner of  labor  his  declaration  in  writing  that  he  accepts 
the  provisions  of  this  act  as  contained  in  the  succeeding 
sections,  and  shall  have  satisfied  the  commissioner  of  labor  of 
his  financial  ability  to  comply  with  its  provisions,  or  shall 
have  filed  with  the  commissioner  of  labor  a  bond,  in  such 
form  and  amount  as  the  commissioner  may  prescribe,  con- 
ditioned on  the  discharge  by  such  employer  of  all  liability 
incurred  under  this  act.  Such  bond  shall  be  enforced  by  the 
commissioner  of  labor  for  the  benefit  of  all  persons  to  whom 
such  employer  may  become  liable  under  this  act  in  the  same 
manner  as  probate  bonds  are  enforced.  The  commissioner 
may,  from  time  to  time,  order  the  filing  of  new  bonds,  when 
in  his  judgment  such  bonds  are  necessary;  and  after  thirty 


1000    Bradbury's  workmen's  compensation  law 

New  Hampshire 

days  from  the  communication  of  such  order  to  any  employer, 
such  employer  shall  be  subject  to  the  provisions  of  section  2 
of  this  act  until  such  order  has  been  complied  with.  The 
employer  may  at  any  time  revoke  his  acceptance  of  the  pro- 
visions of  the  succeeding  sections  of  this  act  by  filing  with 
the  commissioner  of  labor  a  declaration  to  that  effect,  and 
by  posting  copies  of  such  declaration  in  conspicuous  places 
about  the  place  where  his  workmen  are  employed.  Any 
person  aggrieved  by  any  decision  of  the  commissioner  under 
this  section  may  apply  by  petition  to  any  justice  of  the 
superior  court  for  a  review  of  such  decision  and  said  justice 
on  notice  and  hearing  shall  make  such  order  affirming,  re- 
versing or  modifying  such  decision  as  justice  may  require; 
and  such  order  shall  be  final.  Such  employer  shall  be  liable 
to  all  workmen  engaged  in  any  of  the  employments  specified 
in  section  1,  for  any  injury  arising  out  of  and  in  the  course 
of  their  employment,  in  the  manner  provided  in  the  following 
sections  of  this  act.  Provided,  that  the  employer  shall  not 
be  liable  in  respect  of  any  injury  which  does  not  disable 
the  workman  for  a  period  of  at  least  two  weeks  from  earning 
full  wages  at  the  work  at  which  he  was  employed,  and,  pro- 
vided, that  the  employer  shall  not  be  liable  in  respect  of  any 
injury  to  the  workman  which  is  caused  in  whole  or  in  part 
by  the  intoxication,  violation  of  law,  or  serious  or  willful 
misconduct  of  the  workman.  Provided,  further,  that  the 
employer  shall  at  the  election  of  the  workman,  or  his  personal 
representative,  be  liable  under  the  provisions  of  section  2 
of  this  act  for  all  injury  caused  in  whole  or  in  part  by  willful 
failure  of  the  employer  to  comply  with  any  statute,  or  with 
any  order  made  under  authority  of  law. 

Sec.  4.  The  right  of  action  for  damages  caused  by  any 
such  injury,  at  common  law,  or  under  any  statute  in  force 
on  January  one,  nineteen  hundred  and  eleven,  shall  not  be 
affected  by  this  act,  but  in  case  the  injured  workman,  or  in 
event  of  his  death  his  executor  or  administrator,  shall  avail 


TEXTS   OF   COMPENSATION   ACTS  1001 

New  Hampshire 

himself  of  this  act,  either  by  accepting  any  compensation 
hereunder,  by  giving  the  notice  hereinafter  prescribed,  or 
by  beginning  proceedings  therefor  in  any  manner  on  account 
of  any  such  injury,  he  shall  be  barred  from  recovery  in  every 
action  at  common  law  or  under  any  other  statute  on  account 
of  the  same  injury.  In  case  after  such  injury  the  workman, 
or  in  the  event  of  his  death  his  executor  or  administrator, 
shall  commence  any  action  at  common  law  or  under  any 
statute  other  than  this  act  against  the  employer  therefor, 
he  shall  be  barred  from  all  benefit  of  this  act  in  regard  thereto. 
Sec.  5,  No  proceeding  for  compensation  under  this  act 
shall  be  maintained  unless  notice  of  the  accident  as  herein- 
after provided  has  been  given  to  the  employer  as  soon  as 
practicable  after  the  happening  thereof  and  before  the  work- 
man has  voluntarily  left  the  employment  in  which  he  was 
injured  and  during  such  disability,  and  unless  claim  for 
compensation  has  been  made  within  six  months  from  the 
occurrence  of  the  accident,  or  in  case  of  the  death  of  the 
workman,  or  in  the  event  of  his  physical  or  mental  incapacity 
within  six  months  after  such  death  of  the  removal  of  such 
physical  or  mental  incapacity,  or  in  the  event  that  weekly 
payments  have  been  made  under  this  article,  within  six 
months  after  such  payments  have  ceased,  but  no  want  or 
defect  or  inaccuracy  of  a  notice  shall  be  a  bar  to  the  main- 
tenance of  proceedings  unless  the  employer  proves  that  he 
is  prejudiced  by  such  want,  defect  or  inaccuracy.  Notice 
of  the  accident  shall  apprise  the  employer  of  the  claim  for 
compensation  under  this  article,  and  shall  state  the  name  and 
address  of  the  workman  injured,  and  the  date  and  place  of  the 
accident.  The  notice  may  be  served  personally  or  by  sending 
it  by  mail  in  a  registered  letter  addressed  to  the  employer 
at  his  last  known  residence  or  place  of  business. 

Sec.  6.  (1)  The  amount  of  compensation  shall  be,  in  case 
death  results  from  injury:  (a)  If  the  workman  leaves  any 
widow,  children  or  parents,  resident  of  this  State,  at  the  time 


1002    Bradbury's  workmen's  compensation  law 

New  Hampshire 

of  his  death,  then  wholly  dependent  on  his  earnings,  a  sum 
to  compensate  them  for  loss,  equal  to  one  hundred  and  fifty 
times  the  average  weekly  earnings  of  such  workman  when  at 
work  on  full  time  during  the  preceding  year  during  which  he 
shall  have  been  in  the  employ  of  the  same  employer,  or  if  he 
shall  have  been  in  the  employment  of  the  same  employer  for 
less  than  a  year  then  one  hundred  and  fifty  times  his  average 
weekly  earnings  on  full  time  for  such  less  period.  But  in  no 
event  shall  such  sum  exceed  three  thousand  dollars.  Any 
weekly  payments  made  under  this  act  shall  be  deducted  from 
the  sum  so  fixed.  (6)  If  such  widow,  children  or  parents  at 
the  time  of  his  death  are  in  part  only  dependent  upon  his 
earnings,  such  proportion  of  the  benefits  provided  for  those 
wholly  dependent  as  the  amount  of  the  wage  contributed  by 
the  deceased  to  such  partial  dependents  at  the  time  of  injury 
bore  to  the  total  wage  of  the  deceased,  (c)  If  he  leaves  no 
such  dependents,  the  reasonable  expenses  of  his  medical  at- 
tendance and  burial,  not  exceeding  one  hundred  dollars. 
Whatever  sum  may  be  determined  to  be  payable  under  this 
act  in  case  of  death  of  the  injured  workman  shall  be  paid  to 
his  legal  representative  for  the  benefit  of  such  dependents,  or 
if  he  leaves  no  such  dependents,  for  the  benefit  of  the  persons 
to  whom  the  expenses  of  medical  attendance  and  burial  are 
due. 

(2)  Where  total  or  partial  incapacity  for  work  at  any  gain- 
ful employment  results  to  the  workman  from  the  injury,  a 
weekly  payment  commencing  at  the  end  of  the  second  week 
after  the  injury  and  continuing  during  such  incapacity,  sub- 
ject as  herein  provided,  not  exceeding  fifty  per  centum  of  his 
average  weekly  earnings  when  at  work  on  full  time  during 
the  preceding  year  during  which  he  shall  have  been  in  the 
employment  of  the  same  employer,  or  if  he  shall  have  been 
in  the  employment  of  the  same  employer  for  less  than  a  year, 
then  a  weekly  payment  of  not  exceeding  one-half  the  average 
weekly  earnings  on  full  time  for  such  less  period.    In  fixing 


TEXTS   OF   COMPENSATION   ACTS  1003 

New  Hampshire 

the  amount  of  the  weekly  payment,  regard  shall  be  had  to 
the  difference  between  the  amount  of  the  average  earnings  of 
the  workman  before  the  accident  and  the  average  amount  he 
is  able  to  earn  thereafter  as  wages  in  the  same  employment 
or  otherwise.  In  fixing  the  amount  of  the  weekly  payment, 
regard  shall  be  had  to  any  payment,  allowance  or  benefit 
which  the  workman  may  have  received  from  the  employer 
during  the  period  of  his  incapacity,  and  in  the  case  of  partial 
incapacity  the  weekly  payment  shall  in  no  case  exceed  the 
difference  between  the  amount  of  the  average  weekly  earnings 
of  the  workman  before  the  accident  and  the  average  weekly 
amount  which  he  is  earning  or  is  able  to  earn  in  the  same 
employment  or  otherwise  after  the  accident,  but  shall 
amount  to  one-half  of  such  difference.  In  no  event  shall  any 
compensation  paid  under  this  act  exceed  the  damage  suffered, 
nor  shall  any  weekly  payment  payable  under  this  act  in  any 
event  exceed  ten  dollars  a  week  or  extend  over  more  than 
three  hundred  weeks  from  the  date  of  the  accident.  Such 
payment  shall  continue  for  such  period  of  three  hundred 
weeks  provided  total  or  partial  disability  continue  during  such 
period.  No  such  payment  shall  be  due  or  payable  for  any 
time  prior  to  the  giving  of  the  notice  required  by  section  5  of 
this  act. 

Sec  7.  Any  workman  entitled  to  receive  weekly  payments 
under  this  act  is  required,  if  requested  by  the  employer,  to 
submit  himself  for  examination  by  a  duly  qualified  medical 
practitioner  or  surgeon  provided  and  paid  for  by  the  em- 
ployer, at  a  time  and  place  reasonably  convenient  for  the 
workman,  within  two  weeks  after  the  injury,  and  thereafter 
at  intervals  not  oftener  than  once  in  a  week.  If  the  workman 
refuses  to  submit  to  such  examination,  or  obstructs  the  same, 
his  right  to  weekly  payments  shall  be  suspended  until  such 
examination  has  taken  place,  and  no  compensation  shall  be 
payable  during  or  for  account  of  such  period. 

Sec.  8.  In  case  an  injured  workman  shall  be  mentally  in- 


1004    Bradbury's  workmen's  compensation  law 

New  Hampshire 

competent  at  the  time  when  any  right  or  privilege  accrues 
to  him  under  this  act,  the  guardian  of  the  incompetent  ap- 
pointed pursuant  to  law  may,  on  behalf  of  such  incompetent, 
claim  and  exercise  any  such  right  or  privilege  with  the  same 
force  and  effect  as  if  the  workman  himself  had  been  com- 
petent and  had  claimed  or  exercised  any  such  right  or 
privilege,  and  no  limitation  of  time  in  this  act  provided  for 
shall  run  so  long  as  said  incompetent  workman  has  no 
guardian. 

Sec.  9.  Any  question  as  to  compensation  which  may 
arise  under  this  act  shall  be  determined  by  agreement  or  by 
an  action  at  equity,  as  hereinafter  provided.  In  case  the 
employer  fail  to  make  compensation  as  herein  provided,  the 
injured  workman,  or  his  guardian,  if  such  be  appointed,  or 
his  executor  or  administrator,  may  then  bring  an  action  to 
recover  compensation  under  this  act  in  any  court  having 
jurisdiction  of  an  action  for  recovery  of  damages  for  negli- 
gence for  the  same  injury  between  the  same  parties.  Such 
action  shall  be  by  petition  in  equity,  which  may  be  made 
returnable  at  the  appropriate  term  of  the  Superior  Court  or 
may  be  filed  in  the  office  of  the  clerk  of  the  Superior  Court 
and  presented  in  term  time  or  vacation  to  any  justice  of  said 
court,  who  on  reasonable  notice  shall  hear  the  parties  and 
render  judgment  thereon.  The  judgment  in  such  action  if 
in  favor  of  the  plaintiff  shall  be  for  a  lump  sum  equal  to  the 
amount  of  payments  then  due  and  prospectively  due  under 
this  act.  In  such  action  by  an  executor  or  administrator  the 
judgment  may  provide  the  proportions  of  the  award  or  the 
costs  to  be  distributed  to  or  between  the  several  dependents. 
If  such  determination  is  not  made  it  shall  be  determined  by 
the  Probate  Court  in  which  such  executor  or  administrator 
is  appointed,  in  accordance  with  this  act,  on  petition  of  any 
party  interested,  on  such  notice  as  such  court  may  direct. 
Any  employer  who  has  declared  his  intention  to  act  under  the 
compensation  features  of  this  act  shall  also  have  the  right  to 


TEXTS   OF   COMPENSATION   ACTS  1005 

New  Hampshire 

apply  by  similar  proceedings  to  the  Superior  Court  or  to  any 
justice  thereof  for  a  determination  of  the  amount  of  the 
weekly  payments  to  be  paid  the  injured  workman,  or  of  a 
lump  sum  to  be  paid  the  injured  workman  in  lieu  of  such 
weekly  payments;  and  either  such  employer  or  workman 
may  apply  to  said  Superior  Court  or  to  any  justice  thereof 
in  similar  proceeding  for  the  determination  of  any  other 
question  that  may  arise  under  the  compensation  feature  of 
this  act;  and  said  court  or  justice,  after  reasonable  notice 
and  hearing,  may  make  such  order  as  to  the  matter  in  dis- 
pute and  taxable  costs  as  justice  may  require. 

Sec.  10.  Any  person  entitled  to  weekly  payments  under 
this  act  against  any  employer  shall  have  the  same  preferential 
claim  therefor  against  the  assets  of  the  employer  as  is  allowed 
by  law  for  a  claim  by  such  person  against  such  employer  for 
unpaid  wages  or  personal  services.  Weekly  payments  due 
under  this  act  shall  not  be  assignable  or  subject  to  levy, 
execution,  attachment  or  satisfaction  of  debts.  Any  right  to 
receive  compensation  under  this  act  shall  be  extinguished  by 
the  death  of  the  person  entitled  thereto. 

Sec.  11.  No  claim  of  any  attorney-at-law  for  any  con- 
tingent interest  in  any  recovery  under  this  act  for  services  in 
securing  such  recovery  or  for  disbursements  shall  be  an 
enforceable  lien  on  such  recovery,  unless  the  account  of  the 
same  be  approved  in  writing  by  a  justice  of  the  Superior 
Court  or,  in  case  the  same  be  tried  in  any  court,  by  the 
justice  presiding  at  such  trial. 

Sec.  12.  Every  employer  subject  to  the  provisions  of  this 
act,  shall  from  time  to  time  make  to  the  commissioner  of 
labor  such  returns  as  to  its  operation  as  said  commissioner 
may  require  upon  blanks  to  be  furnished  by  said  commis- 
sioner. Any  employer  failing  to  make  such  returns  when  re- 
quired by  said  commissioner  shall,  until  such  returns  are 
made,  be  subject  to  the  provisions  of  section  2  of  this 
act. 


1006    Bradbury's  workmen's  compensation  law 

New  Jersey 

Sec.  13.  This  act  shall  take  efifect  January  first,  nineteen 
hundred  and  twelve. 
Approved  April  15,  1911. 


NEW  JERSEY 

(L.  1911,  c.  95) 

An  Act  prescribing  the  liability  of  an  employer  to  make 
compensation  for  injuries  received  by  an  employe  in  the 
course  of  employment,  establishing  an  elective  schedule  of 
compensation,  and  regulating  procedure  for  the  determina- 
tion of  liability  and  compensation  thereunder. 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the 
State  of  New  Jersey: 

compensation  by  action  at  law 

Section  I,  1.  Employe  entitled  to  compensation  for  acci- 
dental injury .  F act  determined  hy  jury.  When  personal  injury 
is  caused  to  an  employe  by  accident  arising  out  of  and  in  the 
course  of  his  employment,  of  which  the  actual  or  lawfully  im- 
puted negligence  of  the  employer  is  the  natural  and  proximate 
cause,  he  shall  receive  compensation  therefor  from  his  em- 
ployer, provided  the  employe  was  himself  not  willfully  negli- 
gent at  the  time  of  receiving  such  injury,  and  the  question  of 
whether  the  employe  was  willfully  negligent  shall  be  one  of 
fact  to  be  submitted  to  the  jury,  subject  to  the  usual  superin- 
tending powers  of  a  court  to  set  aside  a  verdict  rendered 
contrary  to  the  evidence. 

2.  Certain  pleas  abolished.  The  right  to  compensation  as 
provided  by  section  I,  1  of  this  act  shall  riot  be  defeated  upon 
the  ground  that  the  injury  was  caused  in  any  degree  by  the 
negligence  of  a  fellow  employe;  or  that  the  injured  employ^ 
assumed  the  risks  inherent  in  or  incidental  to  or  arising  out 
of  his  employment  or  arising  from  the  failure  of  the  employer 


TEXTS   OF   COMPENSATION   ACTS  1007 

New  Jersey 

to  provide  and  maintain  safe  premises  and  suitable  appli- 
ances; which  said  grounds  of  defense  are  hereby  aboUshed. 

3.  Contract  not  to  bar  liability.  If  an  employer  enters  into 
a  contract,  written  or  verbal,  with  an  independent  contractor 
to  do  part  of  such  employer's  work,  or  if  such  contractor 
enters  into  a  contract,  written  or  verbal,  with  a  subcontractor 
to  do  all  or  any  part  of  such  work  comprised  in  such  con- 
tractor's contract  with  the  employer,  such  contract  or  sub- 
contract shall  not  bar  the  liability  of  the  employer  under 
this  act  for  injury  caused  to  an  employ^  of  such  contractor 
or  subcontractor  by  any  defect  in  the  condition  of  the  ways, 
works,  machinery  or  plant  if  the  defect  arose  or  had  not 
been  discovered  and  remedied  through  the  negligence  of 
the  employer  or  some  one  intrusted  by  him  with  the  duty 
of  seeing  that  they  were  in  proper  condition.  This  paragraph 
shall  apply  only  to  actions  arising  under  section  I. 

4.  Application  of  act  in  case  of  death.  The  provisions  of 
paragraphs  one,  two  and  three  shall  apply  to  any  claim  for 
the  death  of  an  employe  arising  under  an  act  entitled  "An 
act  to  provide  for  the  recovery  of  damages  in  cases  where  the 
death  of  a  person  is  caused  by  wrongful  act,  neglect  or  de- 
fault," approved  March  third,  eighteen  hundred  and  forty- 
eight,  and  the  amendments  thereof  and  supplements  thereto. 

5.  Burden  of  proof  on  defendant.  In  all  actions  at  law 
brought  pursuant  to  section  I  of  this  act,  the  burden  of  proof 
to  establish  willful  negligence  in  the  injured  employe  shall 
be  upon  the  defendant. 

6.  Claim  against  compensation.  Proviso.  No  claim  for 
legal  services  or  disbursements  pertaining  to  any  demand 
made  or  suit  brought  under  the  provisions  of  this  act  shall 
be  an  enforceable  lien  against  the  amount  paid  as  compen- 
sation, unless  the  same  be  approved  in  writing  by  the  judge 
or  justice  presiding  at  the  trial,  or  in  case  of  settlement  with- 
out trial,  by  the  judge  of  the  Circuit  Court  of  the  district  in 
which  such  issue  arose;  provided,  that  if  notice  in  writing  be 


1008    Bradbury's  workmen's  compensation  law 

New  Jersey 

given  the  defendant  of  such  claim  for  legal  services  or  dis- 
bursements, the  same  shall  be  a  lien  against  the  amount 
paid  as  compensation,  subject  to  determination  of  the  amount 
and  approval  hereinbefore  provided. 

ELECTIVE    compensation 

Sec.  II,  7.  Compensation  under  agreement.  Exceptions. 
When  employer  and  employ^  shall  by  agreement,  either  ex- 
press or  implied,  as  hereinafter  provided,  accept  the  provisions 
of  section  II  of  this  act,  compensation  for  personal  injuries 
to  or  for  the  death  of  such  employ^  by  accident  arising  out 
of  and  in  the  course  of  his  employment  shall  be  made  by  the 
employer  without  regard  to  the  negligence  of  the  employ^, 
according  to  the  schedule  contained  in  paragraph  eleven,  in 
all  cases  except  when  the  injury  or  death  is  intentionally 
self-inflicted,  or  when  intoxication  is  the  natural  and  prox- 
imate cause  of  injury,  and  the  burden  of  proof  of  such  fact 
shall  be  upon  the  employer. 

8.  Agreement  deemed  surrender  of  rights  to  other  method. 
Such  agreement  shall  be  a  surrender  by  the  parties  thereto 
of  their  rights  to  any  other  method,  form  or  amount  of  com- 
pensation or  determination  thereof  than  as  provided  in 
section  II  of  this  act,  and  an  acceptance  of  all  the  provisions 
of  section  II  of  this  act,  and  shall  bind  the  employe  himself 
and  for  compensation  for  his  death  shall  bind  his  personal 
representatives,  his  widow  and  next  of  kin,  as  well  as  the 
employer,  and  those  conducting  his  business  during  bank- 
ruptcy or  insolvency. 

9.  Employment  subject  to  this  act.  Every  contract  of  hiring 
made  subsequent  to  the  time  provided  for  this  act  to  take 
effect  shall  be  presumed  to  have  been  made  with  reference 
to  the  provisions  of  section  II  of  this  act,  and  unless  there 
be  as  a  part  of  such  contract  an  express  statement  in  writing, 
prior  to  any  accident,  either  in  the  contract  itself  or  by 
written  notice  from  either  party  to  the  other,  that  the  pro- 


TEXTS   OF   COMPENSATION   ACTS  1009 

New  Jersey 

visions  of  section  II  of  this  act  are  not  intended  to  apply, 
then  it  shall  be  presumed  that  the  parties  have  accepted  the 
provisions  of  section  II  of  this  act  and  have  agreed  to  be 
bound  thereby.  In  the  employment  of  minors,  section  II 
shall  be  presumed  to  apply  unless  the  notice  be  given  by  or 
to  the  parent  or  guardian  of  the  minor. 

10.  Termination  of  contract.  The  contract  for  the  opera- 
tion of  the  provisions  of  section  II  of  this  act  may  be  ter- 
minated by  either  party  upon  sixty  days*  notice  in  writing 
prior  to  any  accident. 

1 1 .  Following  is  the  schedule  of  compensation : 

(a)  Schedule  of  payments.  Temporary  disability.  Proviso. 
For  injury  producing  temporary  disability,  fifty  per  centum 
of  the  wages  received  at  the  time  of  injury,  subject  to  a 
maximum  compensation  of  ten  dollars  per  week  and  a 
minimum  of  five  dollars  per  week;  provided,  that  if  at  the 
time  of  injury  the  employ^  receives  wages  of  less  than  five 
dollars  per  week,  then  he  shall  receive  the  full  amount  of 
such  wages  per  week.  This  compensation  shall  be  paid 
during  the  period  of  such  disability,  not,  however,  beyond 
three  hundred  weeks. 

(6)  Complete  disability.  Proviso.  For  disability  total 
in  character  and  permanent  in  quality,  fifty  per  centum  of 
the  wages  received  at  the  time  of  injury,  subject  to  a  max- 
imum compensation  of  ten  dollars  per  week  and  a  minimum 
of  five  dollars  per  week;  provided,  that  if  at  the  time  of  injury 
the  employ^  receives  wages  of  less  than  five  dollars  per  week, 
then  he  shall  receive  the  full  amount  of  wages  per  week. 
This  compensation  shall  be  paid  during  the  period  of  such 
disability,  not,  however,  beyond  four  hundred  weeks. 

(c)  Partial  disability.  For  disability  partial  in  character 
but  permanent  in  quality,  the  compensation  shall  be  based 
upon  the  extent  of  such  disability.  In  cases  included  by  the 
following  schedule  the  compensation  shall  be  that  named 
in  the  schedule,  to  wit: 
64 


1010    Bradbury's  workmen's  compensation  law 

New  Jersey 

Thumb.  For  the  loss  of  a  thumb,  fifty  per  centum  of 
daily  wages  during  sixty  weeks. 

First  finger.  For  the  loss  of  a  first  finger,  commonly  called 
index  finger,  fifty  per  centum  of  daily  wages  during  thirty- 
five  weeks. 

Second  finger.  For  the  loss  of  a  second  finger,  fifty  per 
centum  of  daily  wages  during  thirty  weeks. 

Third  finger.  For  the  loss  of  a  third  finger,  fifty  per  centum 
of  daily  wages  during  twenty  weeks. 

Fourth  finger.  For  the  loss  of  a  fourth  finger,  commonly 
called  little  finger,  fifty  per  centum  of  daily  wages  during 
fifteen  weeks. 

Phalange.  The  loss  of  the  first  phalange  of  the  thumb,  or 
of  any  finger,  shall  be  considered  to  be  equal  to  the  loss  of 
one-half  of  such  thumb,  or  finger,  and  compensation  shall  be 
one-half  the  amounts  above  specified. 

More  than  one  phalange.  Proviso.  The  loss  of  more  than 
one  phalange  shall  be  considered  as  the  loss  of  the  entire 
finger  or  thumb;  providing,  however,  that  in  no  case  shall  the 
amount  received  for  more  than  one  finger  exceed  the  amount 
provided  in  this  schedule  for  the  loss  of  a  hand. 

Greai  toe.  For  the  loss  of  a  great  toe,  fifty  per  centum  of 
daily  wages  during  thirty  weeks. 

Other  toes.  For  the  loss  of  one  of  the  toes  other  than  a  great 
toe,  fifty  per  centum  of  daily  wages  during  ten  weeks. 

Phalange  of  toe.  For  the  loss  of  the  first  phalange  of  any 
toe  shall  be  considered  to  be  equal  to  the  loss  of  one-half  of 
such  toe,  and  compensation  shall  be  one-half  of  the  amount 
above  specified. 

More  than  one  phalange.  The  loss  of  more  than  one 
phalange  shall  be  considered  as  the  loss  of  the  entire  toe. 

Hand.  For  the  loss  of  a  hand,  fifty  per  centum  of  daily 
wages  during  one  hundred  and  fifty  weeks. 

Arm.  For  the  loss  of  an  arm,  fifty  per  centum  of  daily 
wages  during  two  hundred  weeks. 


TEXTS   OF   COMPENSATION   ACTS  1011 

New  Jersey 

Foot.  For  the  loss  of  a  foot,  fifty  per  centum  of  daily  wages 
during  one  hundred  and  twenty-five  weeks. 

Leg.  For  the  loss  of  a  leg,  fifty  per  centum  of  daily  wages 
during  one  hundred  and  seventy-five  weeks. 

Eye.  For  the  loss  of  an  eye,  fifty  per  centum  of  daily 
wages  during  one  hundred  weeks. 

Both  hands,  etc.  The  loss  of  both  hands,  or  both  arms,  or 
both  feet,  or  both  legs,  or  both  eyes,  or  of  any  two  thereof, 
shall  constitute  total  and  permanent  disability,  to  be  com- 
pensated according  to  the  provisions  of  clause  (6). 

In  other  cases.  In  all  other  cases  in  this  class  the  compen- 
sation shall  bear  such  relation  to  the  amounts  stated  in  the 
above  schedule  as  the  disabilities  bear  to  those  produced  by 
the  injuries  named  in  the  schedule.  Should  the  employer 
and  employ^  be  unable  to  agree  upon  the  amount  of  com- 
pensation to  be  paid  in  cases  not  covered  by  the  schedule, 
the  amount  of  compensation  shall  be  settled  according  to  the 
provisions  of  paragraph  twenty  hereof. 

Maximum  and  minimum  amount.  The  amounts  specified 
in  this  clause  are  all  subject  to  the  same  limitations  as  to 
maximum  and  minimum  as  are  stated  in  clause  (o). 

12.  Basis  of  computation  in  case  of  death.  In  case  of  death 
compensation  shall  be  computed  but  not  distributed  on  the 
following  basis: 

(1)  Actual  dependents. 

If  orphan  or  orphans,  a  minimum  of  twenty-five  per  cen- 
tum of  wages  of  deceased,  with  ten  per  centum  additional  for 
each  orphan  in  excess  of  two,  witl^  a  maximum  of  sixty  per 
centum. 

If  widow  alone,  twenty-five  per  centum  of  wages. 

If  widow  and  one  child,  forty  per  centum  of  wages. 

If  widow  and  two  children,  forty-five  per  centum  of  wages. 

If  widow  and  three  children,  fifty  per  centum  of  wages. 

If  widow  and  four  children,  fifty-five  per  centum  of 
wages. 


1012    bradbuey's  workmen's  compensation  law 

New  Jersey 

If  widow  and  five  children  or  more,  sixty  per  centum  of 
wages. 

If  widow  and  father  or  mother,  fifty  per  centum  of 
wages. 

If  grandparents,  grandchildren,  or  minor,  or  incapacitated 
brothers  or  sisters,  twenty-five  per  centum  of  wages. 

Distribution  of  compensation  in  case  of  death.  Compensa- 
tion in  case  of  death  shall  be  computed  on  the  basis  of  the 
foregoing  schedule,  but  shall  be  distributed  according  to  the 
laws  of  this  State  providing  for  the  distribution  of  the  per- 
sonal property  of  an  intestate  decedent,  unless  decedent  has 
in  fact  left  a  will. 

(2)  No  dependents. 

Sickness  and  burial.  Expense  of  last  sickness  and  burial 
not  exceeding  two  hundred  dollars. 

Orphans  and  minors.  In  computing  compensation  to 
orphans  or  other  children,  only  those  under  sixteen  years  of 
age  shall  be  included,  and  only  during  the  period  in  which 
they  are  under  that  age,  at  which  time  payment  on  account 
of  such  child  shall  cease. 

Weekly  compensation.  Proviso.  Duration.  The  compen- 
sation in  case  of  death  shall  be  subject  to  a  maximum  com- 
pensation of  ten  dollars  per  week  and  a  minimum  of  five 
dollars  per  week;  provided,  that  if  at  the  time  of  injury  the 
employ^  receives  wages  of  less  than  five  dollars  per  week,  then 
the  compensation  shall  be  the  full  amount  of  such  wages  per 
week.  This  compensation  shall  be  paid  during  three  hundred 
weeks. 

Aliens  excepted.  Compensation  under  this  schedule  shall 
not  apply  to  alien  dependents  not  residents  of  the  United 
States. 

13.  No  compensation  first  two  weeks.  No  compensation 
shall  be  allowed  for  the  first  two  weeks  after  injury  received, 
except  as  provided  by  paragraph  fourteen,  nor  in  any  case 
unless  the  employer  has  actual  knowledge  of  the  injury  or  is 


TEXTS  OF  COMPENSATION   ACTS  1013 

New  Jersey 

notified  thereof  within  the  period  specified  in  paragraph 
fifteen. 

14.  Medical  and  hospital  services  supplied  first  two  weeks. 
During  the  first  two  weeks  after  the  injury  the  employer 
shall  furnish  reasonable  medical  and  hospital  services  and 
medicines,  as  and  when  needed,  not  to  exceed  one  hundred 
dollars  in  value,  unless  the  employe  refuses  to  allow  them  to 
be  furnished  by  the  employer. 

15.  As  to  notification  of  employer.  Unless  the  employer 
shall  have  actual  knowledge  of  the  occurrence  of  the  injury, 
or  unless  the  employe,  or  some  one  on  his  behalf,  or  some  of 
the  dependents,  or  some  one  on  their  behalf,  shall  give 
notice  thereof  to  the  employer  within  fourteen  days  of  the 
occurrence  of  the  injury,  then  no  compensation  shall  be  due 
until  such  notice  is  given  or  knowledge  obtained.  If  the 
notice  is  given,  or  the  knowledge  obtained  within  thirty 
days  from  the  occurrence  of  the  injury,  no  want,  failure,  or 
inaccuracy  of  a  notice  shall  be  a  bar  to  obtaining  compensa- 
tion, unless  the  employer  shall  show  that  he  was  prejudiced 
by  such  want,  defect  or  inaccuracy,  and  then  only  to  the 
extent  of  such  prejudice.  If  the  notice  is  given,  or  the  knowl- 
edge obtained  within  ninety  days,  and  if  the  employ^,  or  other 
beneficiary,  shall  show  that  his  failure  to  give  prior  notice  was 
due  to  his  mistake,  inadvertence,  ignorance  of  fact  or  law,  or 
inability,  or  to  the  fraud,  misrepresentation  or  deceit  of 
another  person,  or  to  any  other  reasonable  cause  or  excuse, 
then  compensation  may  be  allowed,  unless,  and  then  to  the 
extent  only  that  the  employer  shall  show  that  he  was  prej- 
udiced by  failure  to  receive  such  notice.  Unless  knowledge 
be  obtained,  or  notice  given,  within  ninety  days  after  the 
occurrence  of  the  injury,  no  compensation  shall  be  allowed. 

16.  Service  of  notice.  The  notice  referred  to  may  be  served 
personally  upon  the  employer,  or  upon  any  agent  of  the 
employer  upon  whom  a  summons  may  be  served  in  a  civil 
action,  or  by  sending  it  through  the  mail  to  the  employer  at 


1014    Bradbury's  workmen's  compensation  law 

New  Jersey 

the  last  known  residence  or  business  place  thereof  within  the 
State,  and  shall  be  substantially  in  the  following  form: 

Form  of  notice.    Sufficiency  of  notice. 

To  (name  of  employer) : 

You  are  hereby  notified  that  a  personal  injury  was  re- 
ceived by  (name  of  employe  injured),  who  was  in  your  em- 
ploy at  (place)  while  engaged  as  (nature  of  employment), 
on  or  about  the  (  )  day  of  (  ),  nineteen 

hundred  and  (  ),  and  that  compensation  will  be 

claimed  therefor. 

Signed, 

(  ). 

but  no  variation  from  this  form  shall  be  material  if  the 
notice  is  sufficient  to  advise  the  employer  that  a  certain 
employ 6,  by  name,  received  an  injury  in  the  course  of  his 
employment  on  or  about  a  specified  time,  at  or  near  a  cer- 
tain place.  Notice  served  at  the  office  of,  or  on  the  person 
who  was  the  employer's  immediate  superior,  shall  be  a 
compliance  with  this  act. 

17.  Examination  of  employe  as  to  physical  condition. 
After  an  injury,  the  employe,  if  so  requested  by  his  em- 
ployer, must  submit  himself  for  examination  at  some  rea- 
sonable time  and  place  within  the  State,  and  as  often  as 
may  be  reasonably  requested,  to  a  physician  or  physicians 
authorized  to  practice  under  the  laws  of  this  State.  If  the 
employe  requests,  he  shall  be  entitled  to  have  a  physician  or 
physicians  of  his  own  selection  present  to  participate  in 
such  examination.  The  refusal  of  the  employ^  to  submit  to 
such  examination  shall  deprive  him  of  the  right  to  compen- 
sation during  the  continuance  of  such  refusal.  When  a 
right  to  compensation  is  thus  suspended  no  compensation 
shall  be  payable  in  respect  of  the  period  of  suspension. 

18.  In  case  of  dispute  question  submitted  to  court.  In  case 
of  a  dispute  over,  or  failure  to  agree  upon,  a  claim  for  com- 
pensation between  employer  and  employ^,  or  the  depend- 


TEXTS   OF   COMPENSATION   ACTS  1015 

New  Jersey 

ents  of  the  employe,  either  party  may  submit  the  claim 
both  as  to  questions  of  fact,  the  nature  and  effect  of  the 
injuries,  and  the  amount  of  compensation  therefor  accord- 
ing to  the  schedule  herein  provided,  to  the  judge  of  the  court 
of  common  pleas  of  such  county  as  would  have  jurisdiction 
in  a  civil  case,  or  where  there  is  more  than  one  judge  of  said 
court,  then  to  either  or  any  of  said  judges  of  such  court, 
which  judge  is  hereby  authorized  to  hear  and  determine 
such  disputes  in  a  summary  manner,  and  his  decision  as 
to  all  questions  of  fact  shall  be  conclusive  and  binding. 

19.  Payment  in  case  of  death.  In  case  of  death,  where 
no  executor  or  administrator  is  qualified,  the  said  judge 
shall,  by  order,  direct  payment  to  be  made  to  such  person 
as  would  be  appointed  administrator  of  the  estate  of  such 
decedent  upon  like  terms  as  to  bond  for  the  proper  applica- 
tion of  compensation  payments  as  are  required  of  adminis- 
trators. 

20.  Procedure  in  dispute.  Procedure  in  case  of  dispute 
shall  be  as  follows: 

Petition  to  court.  Either  party  may  present  a  petition 
to  said  judge  setting  forth  the  names  and  residences  of  the 
parties  and  the  facts  relating  to  employment  at  the  time 
of  injury,  the  injury  in  its  extent  and  character,  the  amount 
of  wages  received  at  the  time  of  injury,  the  knowledge  of 
the  employer  or  notice  of  the  occurrence  of  said  injury,  and 
such  other  facts  as  may  be  necessary  and  proper  for  the 
information  of  the  said  judge,  and  shall  state  the  matter 
or  matters  in  dispute  and  the  contention  of  the  petitioner 
with  reference  thereto.  This  petition  shall  be  verified  by 
the  oath  or  affirmation  of  the  petitioner. 

Notice  of  hearing.  Answer  filed.  Upon  the  presentation 
of  such  petition  the  same  shall  be  filed  with  the  clerk  of 
the  court  of  common  pleas,  and  the  judge  shall  fix  a  time 
and  place  for  the  hearing  thereof,  not  less  than  three  weeks 
after  the  date  of  the  filing  of  said  petition.    A  copy  of  said 


1016    Bradbury's  workmen's  compensation  law 

New  Jersey 

petition  shall  be  served  as  summons  in  a  civil  action  and  may 
be  served  within  four  days  thereafter  upon  the  adverse 
party.  Within  seven  days  after  the  service  of  such  notice 
the  adverse  party  shall  file  an  answer  to  said  petition,  which 
shall  admit  or  deny  the  substantial  averments  of  the  petition, 
and  shall  state  the  contention  of  the  defendant  with  refer- 
ence to  the  matters  in  dispute  as  disclosed  by  the  petition. 
The  answer  shall  be  verified  in  like  manner  as  required  for 
a  petition. 

Hear  witnesses.  Determination.  Svhsequent  'proceedings. 
As  to  costs.  At  the  time  fixed  for  hearing  or  any  adjourn- 
ment thereof  the  said  judge  shall  hear  such  witnesses  as 
may  be  presented  by  each  party,  and  in  a  summary  manner 
decide  the  merits  of  the  controversy.  This  determination 
shall  be  filed  in  writing  with  the  clerk  of  the  common  pleas 
court,  and  judgment  shall  be  entered  thereon  in  the  same 
manner  as  in  causes  tried  in,  the  court  of  common  pleas, 
and  shall  contain  a  statement  of  facts  as  determined  by 
said  judge.  Subsequent  proceedings  thereon  shall  only  be 
for  the  recovery  of  moneys  thereby  determined  to  be  due, 
provided  that  nothing  herein  contained  shall  be  construed 
as  limiting  the  jurisdiction  of  the  Supreme  Court  to  review 
questions  of  law  by  certiorari.  Costs  may  be  awarded  by 
said  judge  in  his  discretion,  and  when  so  awarded  the  same 
costs  shall  be  allowed,  taxed  and  collected  as  are  allowed, 
taxed  and  collected  for  like  services  in  the  common  pleas 
court. 

21.  Amount  may  he  commuted.  The  amounts  payable 
periodically  as  compensation  may  be  commuted  to  one  or 
more  lump  sum  payments  by  the  judge  of  the  court  of  com- 
mon pleas  having  jurisdiction  as  set  forth  in  the  preceding 
paragraph,  upon  the  application  of  either  party,  in  his  dis- 
cretion, provided  the  same  be  in  the  interest  of  justice.  Un- 
less so  approved,  no  compensation  payments  shall  be  com- 
muted. , 


TEXTS   OF   COMPENSATION   ACTS  1017 

New  Jersey 

Agreement  or  award  may  he  modified.  An  agreement  or 
award  of  compensation  may  be  modified  at  any  time  by  a 
subsequent  agreement,  or  at  any  time  after  one  year  from 
the  time  when  the  same  became  operative  it  may  be  reviewed 
upon  the  appUcation  of  either  party  on  the  ground  that  the 
incapacity  of  the  injured  employe  has  subsequently  increased 
or  diminished.  In  such  case  the  provisions  of  paragraph 
seventeen  with  reference  to  medical  examination  shall  apply. 

22.  Compensation  a  preferential  lien.  Claims  not  assign- 
able. The  right  of  compensation  granted  by  this  act  shall 
have  the  same  preference  against  the  assets  of  the  employer 
as  is  now  or  may  hereafter  be  allowed  by  law  for  a  claim 
for  unpaid  wages  for  labor.  Claims  or  payments  due  under 
this  act  shall  not  be  assignable,  and  shall  be  exempt  from 
all  claims  of  creditors  and  from  levy,  execution  or  attach- 
ment. 

GENERAL   PROVISIONS 

Sec.  Ill,  23.  What  constitutes  vyillful  negligence.  For  the 
purposes  of  this  act,  willful  negligence  shall  consist  of  (1) 
deliberate  act  or  deUberate  failure  to  act,  or  (2)  such  conduct 
as  evidences  reckless  indifference  to  safety,  or  (3)  intoxication, 
operating  as  the  proximate  cause  of  injury. 

Use  of  certain  words.  Wherever  in  this  act  the  singular 
is  used  the  plural  shall  be  included;  where  the  masculine 
gender  is  used,  the  feminine  and  neuter  shall  be  included. 

Synonyms.  Employer  is  declared  to  be  synonjonous  with 
master  and  includes  natural  persons,  partnerships  and  cor- 
porations; employe  is  synonymous  with  servant  and  includes 
all  natural  persons  who  perform  service  for  another  for 
financial  consideration,  exclusive  of  casual  employments. 

As  to  amputations.  Amputation  between  the  elbow  and 
the  wrist  shall  be  considered  as  the  equivalent  of  the  loss  of 
a  hand,  and  amputation  between  the  knee  and  the  ankle 
shall  be  considered  as  the  equivalent  of  the  loss  of  a  foot. 


1018    pradbury's  workmen's  compensation  law 

New  Jersey 

24.  As  to  constitutionality  of  any  provision.  Relation  of 
sections  of  act.  In  case  for  any  reason  any  paragraph  or  any 
provision  of  this  act  shall  be  questioned  in  any  court  and 
shall  be  held  to  be  unconstitutional  or  invalid,  the  same  shall 
not  be  held  to  affect  any  other  paragraph  or  provision  of 
this  act,  except  that  sections  I  and  II  are  hereby  declared 
to  be  inseparable,  and  if  either  section  be  declared  void  or 
inoperative  in  an  essential  part,  so  that  the  whole  of  such 
section  must  fall,  the  other  section  shall  fall  with  it  and  not 
stand  alone.  Section  I  of  this  act  shall  not  apply  in  cases 
where  section  II  becomes  operative  in  accordance  with  the 
provisions  thereof,  but  shall  apply  in  all  other  cases,  and  in 
such  cases  shall  be  in  extension  of  the  common  law. 

25.  Rights  of  action  in  previous  cases.  Every  right  of  action 
for  negligence,  or  to  recover  damages  for  injuries  resulting 
in  death,  existing  before  this  act  shall  take  effect,  is  continued, 
and  nothing  in  this  act  contained  shall  be  construed  as 
affecting  any  such  right  of  action  nor  shall  the  failure  to  give 
the  notice  provided  for  in  section  II,  paragraph  fifteen  of 
this  act,  be  a  bar  to  the  maintenance  of  a  suit  upon  any 
right  or  action  existing  before  this  act  shall  take  effect. 

26.  Repealer.  All  acts  or  parts  of  acts  inconsistent  with 
the  provisions  of  this  act  are  hereby  repealed. 

27.  Effective.  This  act  shall  take  effect  on  the  fourth  day 
of  July  next  succeeding  its  passage  and  approval. 

Approved  April  4,  1911. 

(L.  1911,  c.  368) 

A  supplement  to  an  act  entitled  "an  act  prescribing  the  lia- 
bility of  an  employer  to  make  compensation  for  injuries 
received  by  an  employ^  in  the  course  of  employment,  es- 
tabUshing  an  elective  schedule  of  compensation,  and  regu- 
lating procedure  for  the  determination  of  liability  and  com- 
pensation thereunder,"  approved  April  4,  one  thousand 
nine  hundred  and  eleven. 


TEXTS   OF   COMPENSATION   ACTS  1019 

New  Jersey 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State 
of  New  Jersey: 

1.  Every  contract  of  hiring,  verbal,  written  or  implied 
from  circumstances,  now  in  operation  or  made  or  implied 
prior  to  the  time  limited  for  the  act  to  which  this  act  is  a 
supplement  to  take  effect,  shall,  after  this  act  takes  effect, 
be  presumed  to  continue  subject  to  the  provisions  of  section 
two  of  the  act  to  which  this  act  is  a  supplement,  unless  either 
party  shall,  prior  to  accident,  in  writing,  notify  the  other  party 
to  such  contract  that  the  provisions  of  section  two  of  the 
act  to  which  this  act  is  a  supplement  are  not  intended  to 
apply. 

2.  This  act  shall  take  effect  on  the  fourth  day  of  July 
next  succeeding  its  passage  and  approval. 

May  2,  1911.    Approved  by  Governor. 

(L.  1911,  c.  241) 

An  act  creating  the  employers'  liability  commission  and  pre- 
scribing its  powers  and  duties,  and  requiring  reports  to 
be  made  by  the  employers  of  labor  upon  the  operations 
of  the  employers'  liability  law  for  the  information  of  said 
commission. 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State 
of  New  Jersey. 

1.  The  Governor  is  hereby  authorized  to  appoint  six  citi- 
zens of  this  State  as  an  employers'  liability  commission,  who 
shall  hold  their  offices  for  the  term  of  two  years  and  until  their 
successors  are  appointed  and  qualified.  They  shall  receive 
no  compensation  for  their  services,  but  their  actual  traveling 
expenses  incurred  upon  the  business  of  the  commission  shall 
be  paid  by  the  State  Treasurer,  upon  warrants  approved  by 
the  president  of  the  said  commission.  The  commission  shall 
have  power  to  choose  one  of  their  number  as  president  and 
one  of  their  number  as  secretary,  and  shall  have  power  to 
appoint  a  clerk.    The  expenses  of  the  commission,  the  salary 


1020    Bradbury's  workmen's  compensation  law 

New  Jersey 

of  the  secretary  and  of  the  clerk  shall  be  paid  from  appro- 
priations made  for  that  purpose  in  any  annual  or  supplemental 
appropriation  bill.  It  shall  be  the  duty  of  the  commission 
to  observe  in  detail,  so  far  as  possible,  the  operations  through- 
out the  State  of  the  recent  act  of  the  Legislature  commonly 
known  as  "The  Employers'  Liability  Act,"  entitled  "An 
act  prescribing  the  liability  of  an  employer  to  make  compen- 
sation for  injuries  received  by  an  employ^  in  the  course 
of  employment,  establishing  an  elective  schedule  of  com- 
pensation and  regulating  procedure  for  the  determination 
of  liability  and  compensation  thereunder,"  approved  April 
fourth,  one  thousand  nine  hundred  and  eleven. 

2.  From  and  after  the  fourth  day  of  July  next,  when  the 
said  law  becomes  operative,  every  employer  of  labor  within 
the  State  of  New  Jersey  shall  report  to  said  commission 
upon  the  occurrence  of  any  injury  to  any  of  his  employes 
the  name  and  nationality  of  the  employ 6  so  injured,  the 
nature  and  extent  of  such  injury,  whether  said  injured  employ^ 
and  the  employer  at  the  time  of  said  injury  were  subject 
to  the  provisions  of  section  one  or  section  two  of  said  act, 
and  the  amount  of  compensation  when  determined,  together 
with  such  other  facts  relating  to  such  injury  as  the  commission 
may  request.  The  information  thus  received  shall  be  tab- 
ulated, from  time  to  time,  and  the  records  thereof  shall  be 
the  private  records  of  the  commission;  they  shall  not  be 
made  public  or  open  to  inspection  unless  in  the  opinion  of 
the  commission  the  public  interests  shall  require  it  and  they 
shall  not  be  used  as  evidence  against  any  employer  in  any 
suit  or  action  at  law  brought  by  any  employ^  for  the  recovery 
of  damages.  The  commission  shall  hold  meetings,  from 
time  to  time,  as  they  may  deem  necessary,  and  shall  present 
to  each  session  of  the  legislature  a  report  showing  the 
operations  under  the  said  act  during  the  preceding  j^ear, 
together  with  any  suggestions  or  recommendations  which 
they  may  deem  necessary  or  proper  for  the  improvement 


TEXTS   OF   COMPENSATION   ACTS  1021 

Ohio 

of  the  said  act,  in  order  to  accomplish  with  the  greatest 
efficiency  the  purposes  of  the  said  act. 

3.  This  act  shall  take  effect  immediately.  Approved  by 
the  Governor— April  27,  1911. 

OHIO 

(102  Ohio  L.  524) 

An  act  to  create  a  state  insurance  fund  for  the  benefit  of  in- 
jured, and  the  dependents  of  killed  employes,  and  to  pro- 
vide for  the  administration  of  such  fund  by  a  state  liability 
board  of  awards. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio. 
Section  1.  There  is  hereby  created  a  state  liability  board 
of  awards,  to  be  composed  of  three  members,  not  more  than 
two  of  whom  shall  belong  to  the  same  political  party,  to  be 
appointed  by  the  governor,  within  thirty  days  after  the 
passage  of  this  act,  one  of  which  members  shall  be  appointed 
for  the  term  of  two  years,  one  member  for  four  years  and  one 
member  for  six  years,  and  thereafter  as  their  terms  expire  the 
governor  shall  appoint  one  member  for  the  term  of  six  years. 
Vacancies  shall  be  filled  by  appointment  by  the  governor  for 
the  unexpired  term. 

Sec.  2.  Each  member  of  the  board  shall  devote  his  entire 
time  to  the  duties  of  his  office  and  shall  not  hold  any  position 
of  trust  or  profit  or  engage  in  any  occupation  or  business  in- 
terfering or  inconsistent  with  his  duty  as  such  member,  or 
serve  on  or  under  any  committee  of  any  political  party. 

Sec.  3.  Each  member  of  the  board  shall  receive  an  annual 
salary  of  five  thousand  dollars,  payable  in  the  same  manner 
as  salaries  of  state  officers  are  paid. 

Sec.  4.  The  board  shall  be  in  continuous  session  and  open 
for  the  transaction  of  business  during  all  the  business  hours 
of  each  and  every  day,  excepting  Sundays  and  legal  hoUdays. 
All  sessions  shall  be  open  to  the  public,  and  shall  stand  and 


1022    Bradbury's  workmen's  compensation  law 

Ohio 

be  adjourned  without  further  notice  thereof  on  its  records. 
All  proceedings  of  the  board  shall  be  shown  on  its  record  of 
proceedings,  which  shall  be  a  public  record,  and  shall  contain 
a  record  of  each  case  considered,  and  the  award  made  with 
respect  thereto,  and  all  voting  shall  be  had  by  the  calling  of 
each  member's  name  by  the  secretary  and  each  vote  shall  be 
recorded  as  cast. 

Sec.  5.  A  majority  of  the  board  shall  constitute  a  quorum 
for  the  transaction  of  business,  and  a  vacancy  shall  not  im- 
pair the  right  of  the  remaining  members  to  exercise  all  the 
powers  of  the  full  board  so  long  as  a  majority  remains.  Any 
investigations,  inquiry  or  hearing  which  the  board  is  au- 
thorized to  hold,  or  undertake,  may  be  held  or  undertaken  by 
or  before  any  one  member  of  the  board.  All  investigations, 
inquiries,  hearings  and  decisions  of  the  board,  and  every 
order  made  by  a  member  thereof,  when  approved  and  con- 
firmed by  a  majority  of  the  members,  and  so  shown  on  its 
record  of  proceedings,  shall  be  deemed  to  be  the  order  of  the 
board. 

Sec.  6.  The  board  shall  keep  and  maintain  its  office  in  the 
city  of  Columbus,  and  shall  provide  a  suitable  room  or 
rooms,  necessary  office  furniture,  supplies,  books,  periodicals 
and  maps.  All  necessary  expenses  shall  be  audited  and  paid 
out  of  the  state  treasury.  The  board  may  hold  sessions  at 
any  place  within  the  State. 

Sec.  7.  The  board  may  employ  a  secretary,  actuary, 
accountants,  inspectors,  examiners,  experts,  clerks,  sten- 
ographers and  other  assistants,  and  fix  their  compensation. 
Such  employments  and  compensation  shall  be  first  approved 
by  the  governor,  and  shall  be  paid  out  of  the  state  treasury. 
The  members  of  the  board,  actuaries,  accountants,  inspectors, 
examiners,  experts,  clerks,  stenographers  and  other  assistants 
that  may  be  employed  shall  be  entitled  to  receive  from  the 
state  treasury  their  actual  and  necessary  expenses  while 
traveling  in  the  business  of  the  board.    Such  expenses  shall 


TEXTS   OF   COMPENSATION   ACTS  1023 

Ohio 

be  itemized  and  sworn  to  by  the  person  who  incurred  the 
expense,  and  allowed  by  the  board. 

Sec,  8.  The  board  shall  adopt  reasonable  and  proper  rules 
to  govern  its  procedure,  regulate  and  provide  for  the  kind 
and  character  of  notices,  and  the  services  thereof,  in  cases  of 
accident  and  injury  to  employes,  the  nature  and  extent  of 
the  proofs  and  evidence,  and  the  method  of  taking  and  fur- 
nishing the  same,  to  establish  the  right  to  benefits  of  com- 
pensation from  the  state  insurance  fund,  hereinafter  pro- 
vided for,  the  forms  of  application  of  those  claiming  to  be 
entitled  to  benefits  or  compensation  therefrom,  the  method 
of  making  investigations,  physical  examinations  and  in- 
spections, and  prescribe  the  time  within  which  adjudications 
and  awards  shall  be  made. 

Sec.  9.  Every  employer  shall  furnish  the  board,  upon 
request,  all  information  required  by  it  to  carry  out  the  pur- 
poses of  this  act.  The  board  or  any  member  thereof,  or  any 
person  employed  by  the  board  for  that  purpose,  shall  have 
the  right  to  examine  under  oath  any  employer  or  ofl&cer, 
agent  or  employ^  thereof. 

Sec.  10.  Every  employer  receiving  from  the  board  any 
blank  with  directions  to  fill  the  same,  shall  cause  the  same 
to  be  properly  filled  out  as  to  answer  fully  and  correctly  all 
questions  therein  propounded,  and  if  unable  to  do  so  shall 
give  good  and  sufficient  reasons  for  such  failure.  Answers 
to  such  questions  shall  be  verified  under  oath  and  returned  to 
the  board  within  the  period  fixed  by  the  board  for  such  re- 
turn. 

Sec.  11.  Each  member  of  the  board,  the  secretary  and 
every  inspector  or  examiner  appointed  by  the  board  shall, 
for  the  purposes  contemplated  by  this  act,  have  power  to 
administer  oaths,  certify  to  official  acts,  take  depositions, 
issue  subpoenas,  compel  the  attendance  of  witnesses  and  the 
production  of  books,  accounts,  papers,  records,  documents 
and  testimony. 


1024    Bradbury's  workmen's  compensation  law 

Ohio 

Sec.  12.  In  case  of  disobedience  of  any  person  to  comply 
with  the  order  of  the  board,  or  subpoena  issued  by  it  as  one 
of  its  inspectors,  or  examiners,  or  on  the  refusal  of  a  witness 
to  testify  to  any  matter  regarding  which  he  may  be  lawfully 
interrogated,  or  refuse  to  permit  an  inspection  as  aforesaid, 
the  probate  judge  of  the  county  in  which  the  person  resides, 
on  application  of  any  member  of  the  board,  or  any  inspector 
or  examiner  appointed  by  it,  shall  compel  obedience  by 
attachment  proceedings  as  for  contempt,  as  in  the  case  of 
disobedience  of  the  requirements  of  subpoenas  issued  from 
such  court  on  a  refusal  to  testify  therein. 

Sec.  13.  Each  officer  who  serves  such  subpoena  shall  re- 
ceive the  same  fees  as  a  sheriff,  and  each  witness  who  appears, 
in  obedience  to  a  subpoena,  before  the  board  or  an  inspector 
or  examiner,  shall  receive  for  his  attendance  the  fees  and 
mileage  provided  for  witnesses  in  civil  cases  in  courts  of 
common  pleas,  which  shall  be  audited  and  paid  from  the 
state  treasury  in  the  same  manner  as  other  expenses  are 
audited  and  paid,  upon  the  presentation  of  proper  vouchers 
approved  by  any  two  members  of  the  board.  No  witness 
subpoenaed  at  the  instance  of  a  party  other  than  the  board 
or  an  inspector  shall  be  entitled  to  compensation  from  the 
state  treasury  unless  the  board  shall  certify  that  his  testi- 
mony was  material  to  the  matter  investigated. 

Sec.  14.  In  an  investigation,  the  board  may  cause  dep- 
ositions of  witnesses  residing  within  or  without  the  State  to 
be  taken  in  the  manner  prescribed  by  the  law  for  like  dep- 
ositions in  civil  actions  in  the  court  of  common  pleas. 

Sec.  15.  A  transcribed  copy  of  the  evidence  and  proceed- 
ings, or  any  specific  part  thereof,  or  any  investigation,  by  a 
stenographer  appointed  by  the  board,  being  certified  by  such 
stenographer  to  be  a  true  and  correct  transcript  of  the  testi- 
mony on  the  investigation,  or  of  a  particular  witness,  or  of 
a  specific  part  thereof,  carefully  compared  by  him  with  his 
original  notes,  and  to  be  a  correct  statement  of  the  evidence 


TEXTS   OF   COMPENSATION    ACTS  1025 

Ohio 

and  proceedings  had  on  such  investigation  so  purporting  to 
be  taken  and  subscribed,  may  be  received  in  evidence  by 
the  boatd  with  the  same  effect  as  if  such  stenographer  were 
present  and  testified  to  the  facts  so  certified.  A  copy  of  such 
transcript  shall  be  furnished  on  demand  to  any  party  upon 
the  payment  of  the  fee  therefor,  as  provided  for  transcript 
in  courts  of  common  pleas. 

Sec.  16.  The  board  shall  prepare  and  furnish  blank 
forms,  and  provide  in  its  rules  for  their  distribution  so  that 
the  same  may  be  readily  available,  of  application  for  benefits 
or  compensation  from  the  state  insurance  fund,  notices  to 
employers,  proofs  of  injury  or  death,  of  medical  attendance, 
of  employment  and  wage  earnings,  and  such  other  blanks  as 
may  be  deemed  proper  and  advisable,  and  it  shall  be  the 
duty  of  insured  employers  to  constantly  keep  on  hand  a 
sufficient  supply  of  such  blanks. 

Sec.  17.  The  state  liability  board  of  awards  shall  classify 
employments  with  respect  to  their  degree  of  hazard,  and 
determine  the  risks  of  the  different  classes  and  fix  the  rates 
of  premium  of  the  risks  of  the  same,  based  upon  the  total 
pay  roll  and  number  of  employes  in  each  of  said  classes  of 
employment,  sufficiently  large  to  provide  an  adequate  fund 
for  the  compensation  provided  for  in  this  act,  and  to  create 
a  surplus  sufficiently  large  to  guarantee  a  state  insurance 
fund  from  year  to  year. 

Sec.  18.  The  state  liability  board  of  awards  shall  establish 
a  state  insurance  fund  from  premiums  paid  thereto  by  em- 
ployers and  employes  as  herein  provided,  according  to  the 
rates  of  risk  in  the  classes  established  by  it,  as  herein  pro- 
vided, for  the  benefit  of  employes  of  employers  that  have 
paid  the  premium  applicable  to  the  classes  to  which  they 
belong  and  for  the  benefit  of  the  dependents  of  such  em- 
ployes, and  shall  adopt  rules  and  regulations  with  respect 
to  the  collection,  maintenance  and  disbursement  of  said 
fund. 

65 


1026    Bradbury's  workmen's  compensation  law 

Ohio 

Sec.  19.  The  treasurer  of  state  shall  be  the  custodian  of 
the  state  insurance  fund,  and  all  disbursements  therefrom 
shall  be  paid  by  him,  but  upon  vouchers  signed  by  any  two 
members  of  the  state  liability  board  of  awards. 

Sec.  20.  The  treasurer  of  state  shall  give  a  separate  and 
additional  bond,  in  such  amount  as  may  be  fixed  by  the 
governor,  and  with  sureties  to  his  approval,  conditioned  for 
the  faithful  performance  of  his  duties  as  custodian  of  the 
state  insurance  fund  herein  provided  for. 

Sec.  20-1.  Any  employer  who  employs  five  or  more  work- 
men or  operatives  regularly  in  the  same  business,  or  in  or 
about  the  same  establishment  who  shall  pay  into  the  state 
insurance  fund  the  premiums  provided  by  this  act,  shall  not 
be  liable  to  respond  in  damages  at  common  law  or  by  statute, 
save  as  hereinafter  provided,  for  injuries  or  death  of  any  such 
employ^,  wherever  occurring,  during  the  period  covered  by 
such  premiums,  provided  the  injured  employe  has  remained 
in  his  service  with  notice  that  his  employer  has  paid  into  the 
state  insurance  fund  the  premiums  provided  by  this  act;  the 
continuation  in  the  service  of  such  employer  with  such 
notice,  shall  be  deemed  a  waiver  by  the  employ^  of  his  right 
of  action  as  aforesaid. 

Each  employer  paying  the  premiums  provided  by  this  act 
into  the  state  insurance  fund  shall  post  in  conspicuous  places 
about  his  place  or  places  of  business  typewritten  or  printed 
notices  stating  the  fact  that  he  has  made  such  payment;  and 
the  same,  when  so  posted,  shall  constitute  sufficient  notice 
to  his  employes  of  the  fact  that  he  has  made  such  payment; 
and  of  any  subsequent  payments  he  may  make  after  such 
notices  have  been  posted. 

Sec.  20-2.  For  the  purpose  of  creating  such  state  in- 
surance fund,  each  employer  who  employs  five  or  more 
workmen  or  operatives  regularly  in  the  same  business,  or  in 
or  about  the  same  establishment,  and  his  employes  in  this 
State,  having  elected  to  accept  the  provisions  of  this  act, 


TEXTS   OF   COMPENSATION   ACTS  1027 

Ohio 

shall  pay,  on  or  before  January  1,  1912,  and  semi-annually 
thereafter,  the  premiums  of  liability  risk  in  the  classes  of 
employment  as  may  be  determined  and  published  by  the 
state  liability  board  of  awards.  The  said  employers  for  them- 
selves and  their  employes  shall  make  such  payments  to  the 
state  treasurer  of  Ohio,  who  shall  receive  and  place  the  same 
to  the  credit  of  such  state  insurance  fund.  The  premiums 
provided  for  in  this  act  shall  be  paid  by  the  employer  and 
employes  in  the  following  proportions,  to-wit:  Ninety  per 
cent  of  the  premium  shall  be  paid  by  the  employer  and  ten 
per  cent  by  the  employes.  Each  employer  is  authorized  to 
deduct  from  the  pay  roll  of  his  employes  ten  per  cent  of  the 
said  premiums  for  any  premium  period  in  proportion  to  the 
pay  roll  of  such  employes;  no  deduction  shall  be  made  except 
for  that  portion  of  the  premium  period  antedating  such  pay 
roll.  Each  employer  shall  give  a  receipt  to  each  employe 
showing  the  amount  which  has  been  deducted  and  paid 
into  the  state  insurance  fund. 

Sec.  21.  The  state  liability  board  of  awards  shall  disburse 
the  state  insurance  fund  to  such  employes  of  employers  as 
have  paid  into  said  fund  the  premiums  applicable  to  the 
classes  to  which  they  belong,  that  have  been  injured  in  the 
course  of  their  employment,  wheresoever  such  injury  has 
occurred,  and  which  have  not  been  purposely  self-inflicted, 
or  to  their  dependents  in  case  death  has  ensued. 

Sec.  21-1.  All  employers  who  employ  five  or  more  work- 
men or  operatives  regularly  in  the  same  business,  or  in  or 
about  the  same  establishment  who  shall  not  pay  into  the 
state  insurance  fund  the  premiums  provided  by  this  act, 
shall  be  liable  to  their  employes  for  damages  suffered  by 
reason  of  personal  injuries  sustained  in  the  course  of  employ- 
ment caused  by  the  wrongful  act,  neglect  or  default  of  the 
employer,  or  any  of  the  employer's  officers,  agents  or  em- 
ployes, and  also  to  the  personal  representatives  of  such 
employes  where  death  results  from  such  injuries  and  in  such 


1028    Bradbury's  workmen's  compensation  law 

Ohio 

action  the  defendant  shall  not  avail  himself  or  itself  of  the 
following  common-law  defenses: 

The  defense  of  the  fellow-servant  rule,  the  defense  of  the 
assumption  of  risk,  or  the  defense  of  contributory  negligence. 

Sec.  21-2.  But  where  a  personal  injury  is  suffered  by  an 
employ^,  or  when  death  results  to  an  employe  from  personal 
injuries  while  in  the  employ  of  an  employer  in  the  course  of 
employment,  and  such  employer  has  paid  into  the  state  insur- 
ance fund  the  premium  provided  for  in  this  act,  and  in  case 
such  injury  has  arisen  from  the  willful  act  of  such  employer, 
or  any  of  such  employer's  officers  or  agents  or  from  the  failure 
of  such  employer,  or  any  of  such  employer's  officers  or  agents, 
to  comply  with  any  municipal  ordinance  or  lawful  order  of  any 
duly  authorized  officer,  or  any  statute  for  the  protection  of  the 
life  or  safety  of  employes,  then  in  such  event,  nothing  in 
this  act  contained  shall  affect  the  civil  liability  of  such  em- 
ployer, but  such  injured  employ^,  or  his  legal  representative 
in  case  death  results  from  the  injury,  may,  at  his  option, 
either  claim  compensation  under  this  act  or  institute  pro- 
ceedings in  the  courts  for  his  damage  on  account  of  such 
injury,  and  such  employer  shall  not  be  liable  for  any  injury 
to  any  employ^,  or  to  his  legal  representative  in  case  death 
results,  except  as  provided  in  this  act. 

Every  employe,  or  legal  representative  in  case  death 
results,  who  makes  application  for  an  award  from  the  state 
liability  board  of  awards,  waives  his  right  to  exercise  his 
option  to  institute  proceedings  in  any  court.  Every  employ^ 
or  his  legal  representative  in  case  death  results,  who  exercises 
his  option  to  institute  proceedings  in  court  as  provided  in 
section  21-2,  waives  his  right  to  any  award;  except  as  pro- 
vided in  section  36  of  this  act. 

Sec.  23.  The  board  shall  disburse  and  pay  from  the  fund, 
for  such  injury,  to  such  employes,  such  amounts  for  medical, 
nurse  and  hospital  services  and  medicines,  as  it  may  deem 
proper,  not,  however  in  any  case,  to  exceed  the  sum  of  two 


TEXTS   OF  COMPENSATION    ACTS  1029 

Ohio 

hundred  dollars,  in  addition  to  such  award  to  such  employ^. 

Sec.  24.  In  case  death  ensues  from  the  injury  reasonable 
funeral  expenses,  not  to  exceed  one  hundred  and  fifty  dollars, 
shall  be  paid  from  the  fund,  in  addition  to  such  award  to 
such  employe. 

Sec.  25.  No  benefit  shall  be  allowed  for  the  first  week 
after  the  injury  is  received,  except  the  disbursement  pro- 
vided for  in  the  next  two  preceding  sections. 

Sec.  26.  In  case  of  temporary  or  partial  disability,  the 
employ^  shall  receive  sixty-six  and  two-thirds  per  cent 
of  the  impairment  of  his  earning  capacity  during  the  con- 
tinuance thereof,  not  to  exceed  a  maximum  of  twelve  dollars 
per  week,  and  not  less  than  a  minimum  of  five  dollars  per 
week,  if  the  employe's  wages  were  less  than  five  dollars  per 
week,  then  he  shall  receive  his  full  wages;  but  not  to  continue 
for  more  than  six  years  from  the  date  of  the  injury,  nor  to 
exceed  three  thousand  four  hundred  dollars  in  amount  from 
that  injury. 

Sec.  27.  In  case  of  permanent  total  disability  the  award  shall 
be  66^/3%  of  the  average  weekly  wage,  and  shall  continue 
until  the  death  of  such  person  so  totally  disabled,  but  not  to 
exceed  a  maximum  of  twelve  dollars  per  week,  and  not  less 
than  a  minimum  of  five  dollars  per  week,  if  the  employe's 
wages  were  less  than  five  dollars  per  week,  then  he  shall 
receive  his  full  wages. 

Sec.  28.  In  case  the  injury  causes  death  within  the  period 
of  two  years  the  benefits  shall  be  in  the  amounts  and  to 
the  persons  following: 

1.  If  there  be  no  dependents,  the  disbursements  from  the 
insurance  fund  shall  be  limited  to  the  expense  provided  for 
in  sections  23  and  24. 

2.  If  there  are  wholly  dependent  persons  at  the  time  of 
the  death,  the  payment  shall  be  sixty-six  and  two-thirds  per 
cent  of  the  average  weekly  wage  and  to  continue  for  the 
remainder  of  the  period  between  the  date  of  the  death  and 


1030    Bradbury's  workmen's  compensation  law 

Ohio 

six  years  after  the  date  of  the  injury,  and  not  to  amount  to 
more  than  a  maximum  of  thirty-four  hundred  dollars,  nor 
less  than  a  minimum  of  one  thousand  five  hundred  dol- 
lars, 

3.  If  there  are  partly  dependent  persons  at  the  time  of 
the  death,  the  payment  shall  be  sixty-six  and  two-thirds 
per  cent  of  the  average  weekly  wage  and  to  continue  for 
all  of  such  portion  of  the  period  of  six  years  after  the  date 
of  the  injury,  as  the  board  in  each  case  may  determine,  and 
not  to  amount  to  more  than  a  maximum  of  thirty-four  hun- 
dred dollars. 

Sec.  29.  The  benefits,  in  case  of  death,  shall  be  paid  to 
such  one  or  more  of  the  dependents  of  the  decedent,  for  the 
benefit  of  all  the  dependents,  as  may  be  determined  by  the 
board,  which  may  apportion  the  benefits  among  the  de- 
pendents in  such  manner  as  it  may  deem  just  and  equitable. 
Payment  to  a  dependent  subsequent  in  right  may  be  made, 
if  the  board  deem  proper,  and  shall  operate  to  discharge  all 
other  claims  therefor. 

Sec.  30.  The  dependent  or  person  to  whom  benefits  are 
paid  shall  apply  the  same  to  the  use  of  the  several  beneficiaries 
thereof  according  to  their  respective  claims  upon  the  decedent 
for  support,  in  compliance  with  the  finding  and  direction 
of  the  board. 

Sec.  31.  The  average  weekly  wage  of  the  injured  person 
at  the  time  of  the  injury  shall  be  taken  as  the  basis  upon 
which  to  compute  the  benefits. 

Sec.  32.  If  it  is  established  that  the  injured  employ^ 
was  of  such  age  and  experience  when  injured  as  that  under 
natural  conditions  his  wages  would  be  expected  to  increase, 
the  fact  may  be  considered  in  arriving  at  his  average  weekly 
wage. 

Sec.  33.  The  power  and  jurisdiction  of  the  board  over  each 
case  shall  be  continuing,  and  it  may  from  time  to  time  make 
Buch  modification  or  change  with  respect  to  former  findings 


TEXTS   OF   COMPENSATION   ACTS  1031 

Ohio 

or  orders  with  respect  thereto,  as,  in  its  opinion,  may  be  justi- 
fied. 

Sec.  34.  The  board,  under  special  circumstances,  and 
when  the  same  is  deemed  advisable,  may  commute  periodical 
benefits  to  one  or  more  lump  sum  payments. 

Sec.  35.  Benefits  before  payment  shall  be  exempt  from 
all  claims  or  creditors  and  from  any  attachment  or  execution, 
and  shall  be  paid  only  to  such  employes  or  their  dependents. 

Sec.  36.  The  board  shall  have  full  power  and  authority  to 
hear  and  determine  all  questions  within  its  jurisdiction,  and 
its  decision  thereon  shall  be  final. 

Provided,  however,  in  case  the  final  action  of  such  board 
denies  the  right  of  the  claimant  to  participate  at  all  in  such 
fund  on  the  ground  that  the  injury  was  self-inflicted  or  on 
the  ground  that  the  accident  did  not  arise  in  the  course  of 
employment,  or  upon  any  other  ground  going  to  the  basis  of 
the  claimant's  right,  then  the  claimant  within  thirty  (30) 
days  after  the  notice  of  the  final  action  of  such  board  may, 
by  filing  his  appeal  in  the  common  pleas  court  of  the  county 
wherein  the  injury  was  inflicted,  be  entitled  to  a  trial  in  the 
ordinary  way,  and  be  entitled  to  a  jury  if  he  demands  it.  In 
such  a  proceeding,  the  prosecuting  attorney  of  the  county, 
without  additional  compensation,  shall  represent  the  state 
liability  board  of  awards,  and  he  shall  be  notified  by  the 
clerk  forthwith  of  the  filing  of  such  appeal. 

Within  thirty  days  after  filing  his  appeal,  the  appellant 
shall  file  a  petition  in  the  ordinary  form  against  such  board 
as  defendant  and  further  pleadings  shall  be  had  in  said  cause 
according  to  the  rules  of  civil  procedure,  and  the  court,  or 
the  jury,  under  the  instructions  of  the  court,  if  a  jury  is 
demanded,  shall  determine  the  right  of  the  claimant;  and, 
if  they  determine  the  right  in  his  favor,  shall  fix  his  com- 
pensation within  the  limits  and  under  the  rules  prescribed 
in  this  act;  and  any  final  judgment  so  obtained  shall  be  paid 
by  the  state  liability  board  of  awards  out  of  the  state  insur- 


1032    Bradbury's  workmen's  compensation  law 

Ohio 

ance  fund  in  the  same  manner  as  such  awards  are  paid  by- 
such  board. 

The  costs  of  such  proceeding,  including  a  reasonable  at- 
torney's fee  to  the  claimant's  attorney  to  be  fixed  by  the 
trial  judge,  shall  be  taxed  against  the  unsuccessful  party. 
Either  party  shall  have  the  right  to  prosecute  error  as  in  the 
ordinary  civil  cases. 

Sec.  36-1.  Such  board  shall  not  be  bound  by  the  usual 
common-law  or  statutory  rules  of  evidence  or  by  any  tech- 
nical or  formal  rules  of  procedure,  other  than  as  herein  pro- 
vided; but  may  make  the  investigation  in  such  maimer  as  in 
their  judgment,  is  best  calculated  to  ascertain  the  substantial 
rights  of  the  parties  and  to  carry  out  justly  the  spirit  of  this 
act. 

Sec.  37.  The  board  may  make  necessary  expenditures  to 
obtain  statistical  and  other  information  to  establish  the 
classes  provided  for  in  section  17.  The  salaries  and  compen- 
sation of  the  secretary,  and  all  actuaries,  accountants,  in- 
spectors, examiners,  experts,  clerks  and  other  assistants, 
and  all  other  expenses  of  the  board  herein  authorized  includ- 
ing the  premium  to  be  paid  by  the  state  treasurer  for  the  bond 
to  be  furnished  by  him,  shall  be  paid  out  of  the  state  treasury 
upon  vouchers,  signed  by  two  of  the  members  of  such  board, 
presented  to  the  auditor  of  state,  who  shall  issue  his  warrant 
therefor  as  in  other  cases. 

Sec.  38.  No  provision  of  this  act  relating  to  the  amount 
of  compensation  shall  be  considered  by,  or  called  to  the 
attention  of  the  jury  on  the  trial  of  any  action  to  recover 
damages  as  herein  provided. 

Sec.  39.  Annually  on  or  before  the  15th  day  of  November, 
such  board,  under  the  oath  of  at  least  two  of  its  members, 
shall  make  a  report  to  the  governor  which  shall  include  a 
statement  of  the  number  of  awards  made  by  it,  and  a  general 
statement  of  the  causes  of  the  accidents  leading  to  the  in- 
juries for  which  the  awards  were  made,  a  detailed  statement 


TEXTS  OF  COMPENSATION  ACTS  1033 

Rhode  Island  and  Providence  Plantations 

of  the  disbursements  from  the  expense  fund,  and  the  condi- 
tion of  its  respective  funds,  together  with  any  other  matters 
which  such  board  deems  it  proper  to  call  to  the  attention 
of  the  governor,  including  any  recommendations  it  may  have 
to  make. 

Sec.  40.  The  expense  of  such  board  in  carrying  out  the 
provisions  of  this  act  shall  be  paid  until  January  1,  1912,  out 
of  the  general  revenue  of  the  State  not  otherwise  appropriated. 
Such  expense  shall  not  exceed  twenty-five  thousand  dollars 
in  addition  to  the  salaries  of  members  of  such  board. 

Sec.  41.  The  expenses  of  such  board  in  carrying  out  the 
provisions  of  this  act  shall  be  paid  from  January  1st,  1912, 
to  January  1st,  1913,  out  of  the  general  revenue  fund  of  the 
State  not  otherwise  appropriated.  Such  expense  shall  not 
exceed  one  hundred  thousand  dollars  in  addition  to  the  salary 
of  the  members. 

S.  J.  ViNING, 

Speaker  of  the  House  of  Representatives. 
H.  L.  Nichols, 
President  of  the  Senate. 
Passed  May  31st,  1911. 
Approved  June  15th,  1911. 

JuDSON  Harmon, 

Governor 


RHODE    ISLAND   AND    PROVIDENCE    PLANTATIONS 

(L.  1912,  c.  000) 

(Senate  No.  1) 

An  Act  relative  to  payments  to  employes  for  personal  in- 
juries received  in  the  course  of  their  employment,  and  to 
the  prevention  of  such  injuries. 


1034    Bradbury's  workmen's  compensation  law 

Rhode  Island  and  Providence  Plantations 

ARTICLE  I 
Abrogation  of  Remedies  and  Defenses 

removal  of  defenses 

Section  1.  In  an  action  to  recover  damages  for  personal 
injury  sustained  by  accident  by  an  employe  arising  out  of 
and  in  the  course  of  his  employment,  or  for  death  resulting 
from  personal  injury  so  sustained,  it  shall  not  be  a  defense: 
(a)  That  the  employe  was  negligent;  (6)  that  the  injury  was 
caused  by  the  negligence  of  a  fellow  employ^;  (c)  that  the 
employ 6  has  assumed  the  risk  of  the  injury. 

exceptions 

Sec.  2.  The  provisions  of  this  act  shall  not  apply  to  ac- 
tions to  recover  damages  for  personal  injuries,  or  for  death 
resulting  from  personal  injuries,  sustained  by  employes  en- 
gaged in  domestic  service  or  agriculture. 

exceptions 

Sec.  3.  The  provisions  of  this  act  shall  not  apply  to  em- 
ployers who  employ  five  or  less  workmen  or  operatives 
regularly  in  the  same  business,  but  such  employers  may,  by 
complying  with  the  provisions  of  section  5  of  this  article 
become  subject  to  the  provisions  of  this  act. 

employer  who  elects  to  pay  compensation 

Sec.  4.  The  provisions  of  section  1  of  this  Article  shall  not 
apply  to  actions  to  recover  damages  for  personal  injuries, 
or  for  death  resulting  from  personal  injuries  sustained  by 
employes  of  an  employer  who  has  elected  to  become  subject 
to  the  provisions  of  this  act  as  provided  in  section  5  of  this 
Article. 


TEXTS   OF   COMPENSATION   ACTS  1035 

Rhode  Island  and  Providence  Plantations 


ELECTION,    HOW   MADE 

Sec.  5.  Such  election  on  the  part  of  the  employer  shall  be 
made  by  filing  with  the  commissioner  of  industrial  statistics 
a  written  statement  to  the  effect  that  he  accepts  the  pro- 
visions of  this  act,  and  by  giving  reasonable  notice  of  such 
election  to  his  workmen  by  posting  and  keeping  continu- 
ously posted  copies  of  such  statement  in  conspicuous  places 
about  the  place  where  his  workmen  are  employed,  the  filing 
of  which  statement  and  the  giving  of  which  notice  shall 
operate  to  subject  such  employer  to  the  provisions  of  this 
act  and  all  acts  amendatory  thereof  for  the  term  of  one  year 
from  the  date  of  the  filing  of  such  statement,  and  thereafter, 
without  further  act  on  his  part,  for  successive  terms  of  one 
year,  each,  unless  such  employer  shall,  at  least  sixty  days 
prior  to  the  expiration  of  such  first  or  any  succeeding  year, 
file  with  said  commissioner  a  notice  in  writing  to  the  effect 
that  he  desires  to  withdraw  his  election  to  be  subject  to  the 
provisions  of  this  act  and  shall  give  reasonable  notice  to  his 
workmen  as  above  provided.  Blank  forms  of  election  and 
withdrawal  as  herein  provided,  shall  be  furnished  by  said 
commissioner. 

ELECTION    BY   EMPLOY]^ 

Sec.  6.  An  employe  of  an  employer  who  shall  have  elected 
to  become  subject  to  the  provisions  of  this  act  as  provided 
in  section  5  of  this  Article  shall  be  held  to  have  waived  his 
right  of  action  at  common  law  to  recover  damages  for  per- 
sonal injuries,  if  he  shall  not  have  given  his  employer  at  the 
time  of  his  contract  of  hire  notice  in  writing  that  he  claimed 
such  right,  and  within  ten  days  thereafter  have  filed  a  copy 
thereof  with  the  commissioner  of  industrial  statistics,  or,  if 
the  contract  of  hire  was  made  before  the  employer  so  elected, 
if  the  employe  shall  not  have  given  the  said  notice  and  filed 


1036    Bradbury's  workmen's  compensation  law 

Rhode  Island  and  Providence  Plantations 

the  same  with  said  commissioner  within  ten  days  after  notice 
by  the  employer,  as  above  provided,  of  such  election;  and 
such  waiver  shall  continue  in  force  for  the  term  of  one  year, 
and  thereafter  without  further  act  on  his  part,  for  successive 
terms  of  one  year,  each,  unless  such  employ^  shall  at  least 
sixty  days  prior  to  the  expiration  of  such  first  or  any  suc- 
ceeding year,  file  with  the  said  commissioner  a  notice  in 
writing  to  the  effect  that  he  desires  to  claim  his  said  right  of 
action  at  common  law  and  within  ten  days  thereafter  shall 
give  notice  thereof  to  his  employer.  A  minor  working  at  an 
age  legally  permitted  under  the  laws  of  this  State  shall  be 
deemed  sui  juris  for  the  purpose  of  this  act  and  no  other 
person  shall  have  any  cause  of  action  or  right  to  compensa- 
tion for  an  injury  to  such  minor  employ^  except  as  expressly 
provided  in  this  act;  but  if  said  minor  shall  have  a  parent 
living  or  a  guardian,  such  parent  or  guardian,  as  the  case 
may  be,  may  give  the  notice  and  file  a  copy  of  the  same  as 
herein  provided  by  this  section,  and  such  notice  shall  bind 
the  minor  in  the  same  manner  that  adult  employes  are  bound 
under  the  provisions  of  this  act.  In  case  no  such  notice  is 
given,  such  minor  shall  be  held  to  have  waived  his  right  of 
action  at  common  law  to  recover  damages  for  personal  in- 
juries. Any  employe,  or  the  parent  or  guardian  of  any 
minor  employ^,  who  has  given  notice  to  the  employer  that 
he  claimed  his  right  of  action  at  common  law  may  waive 
such  claim  by  a  notice  in  writing  which  shall  take  effect  five 
days  after  the  delivery  to  the  employer  or  his  agent. 

IN    LIEU   OF   OTHER   REMEDIES 

Sec.  7.  The  right  to  compensation  for  an  injury,  and  the 
remedy  therefor  granted  by  this  act,  shall  be  in  lieu  of  all 
rights  and  remedies  as  to  such  injury  now  existing,  either 
at  common  law  or  otherwise;  and  such  rights  and  remedies 
shall  not  accrue  to  employes  entitled  to  compensation  under 
this  act  while  it  is  in  effect. 


TEXTS   OF   COMPENSATION   ACTS  1037 

Rhode  Island  and  Providence  Plantations 

ARTICLE  II 

Payments 

to  whom  made 

Section  1.  If  an  employ^  who  has  not  given  notice  of  his 
claim  of  common-law  rights  of  action  or  who  has  given  such 
notice  and  has  waived  the  same,  as  provided  in  section  6  of 
Article  I,  receives  a  personal  injury  by  accident  arising  out 
of  and  in  the  course  of  his  employment,  he  shall  be  paid 
compensation,  as  hereinafter  provided,  by  the  employer 
who  shall  have  elected  to  become  subject  to  the  provisions 
of  this  act. 

WILLFUL   INJURY 

Sec.  2.  No  compensation  shall  be  allowed  for  the  injury 
or  death  of  an  employe  where  it  is  proved  that  his  injury  or 
death  was  occasioned  by  his  willful  intention  to  bring  about 
the  injury  or  death  of  himself  or  of  another,  or  that  the  same 
resulted  from  his  intoxication  while  on  duty. 

CONTINGENT  FEES 

Sec.  3.  Contingent  fees  of  attorneys  for  services  under 
this  act  shall  be  subject  to  the  approval  of  the  superior  court. 

WHEN   COMPENSATION   BEGINS 

Sec.  4.  No  compensation  except  as  provided  by  section  12 
of  this  Article  shall  be  paid  under  this  act  for  any  injury 
which  does  not  incapacitate  the  employ^  for  a  period  of  at 
least  two  weeks  from  earning  full  wages,  but,  if  such  in- 
capacity extends  beyond  the  period  of  two  weeks,  compensa- 
tion shall  begin  on  the  fifteenth  day  after  the  injury. 

MEDICAL   AID 

Sec.  5.  During  the  first  two  weeks  after  the  injury  the 
employer   shall    furnish    reasonable   medical    and    hospital 


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services,  and  medicines  when  they  are  needed,  the  amount 
of  the  charge  for  such  services  to  be  fixed,  in  case  of  the 
failure  of  the  employer  and  employe  to  agree,  by  the  superior 
court. 

INJURIES  resulting  IN  DEATH 

Sec.  6.  If  death  results  from  the  injury,  the  employer 
shall  pay  the  dependents  of  the  employe  wholly  dependent 
upon  his  earnings  for  support  at  the  time  of  his  injury  a 
weekly  payment  equal  to  one-half  his  average  weekly  wages, 
earnings  or  salary,  but  not  more  than  ten  dollars  nor  less 
than  four  dollars  a  week,  for  a  period  of  three  hundred  weeks 
from  the  date  of  the  injury:  Provided,  however,  that,  if  the 
dependent  of  the  employe  to  whom  the  compensation  shall 
be  payable  upon  his  death  is  the  widow  of  such  employe, 
upon  her  death  the  compensation  thereafter  payable  under 
this  act  shall  be  paid  to  the  child  or  children  of  the  deceased 
employe,  including  adopted  and  stepchildren,  under  the  age 
of  eighteen  years,  or  over  said  age  but  physically  or  mentally 
incapacitated  from  earning,  dependent  upon  the  widow  at 
the  time  of  her  death.  In  case  there  is  more  than  one  child 
thus  dependent,  the  compensation  shall  be  divided  equally 
among  them.  If  the  employe  leaves  dependents  only  partly 
dependent  upon  his  earnings  for  support  at  the  time  of  his 
injury,  the  employer  shall  pay  such  dependents  for  a  period 
of  three  hundred  weeks  from  the  date  of  the  injury  a  weekly 
compensation  equal  to  the  same  proportion  of  the  weekly 
payments  herein  provided  for  the  benefit  of  persons  wholly 
dependent  as  the  amount  contributed  annually  by  the  em- 
ploye to  such  partial  dependents  bears  to  the  annual  earn- 
ings of  the  deceased  at  the  time  of  injury.  When  weekly 
payments  have  been  made  to  an  injured  employe  before  his 
death,  the  compensation  to  dependents  shall  begin  from  the 
date  of  the  last  of  such  payments,  but  shall  not  continue 
more  than  three  hundred  weeks  from  the  date  of  the  injury. 
Provided,  however,  that,  if  the  deceased  leaves  no  dependents 


TEXTS   OF   COMPENSATION   ACTS  1039 

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at  the  time  of  the  injury,  the  employer  shall  not  be  liable  to 
pay  compensation  under  this  act  except  as  specifically  pro- 
vided in  section  9  of  this  Article. 


DEPENDENTS 

Sec.  7.  The  following  persons  shall  be  conclusively  pre- 
sumed to  be  wholly  dependent  for  support  upon  a  deceased 
employe : — 

(a)  A  wife  upon  a  husband  with  whom  she  lives  or  upon 
whom  she  is  dependent  at  the  time  of  his  death. 

(6)  A  husband  upon  a  wife  with  whom  he  lives  or  upon 
whom  he  is  dependent  at  the  time  of  her  death. 

(c)  A  child  or  children,  including  adopted  and  stepchil- 
dren, under  the  age  of  eighteen  years,  or  over  said  age,  but 
physically  or  mentally  incapacitated  from  earning,  upon  the 
parent  with  whom  he  is  or  they  are  living  or  upon  whom  he 
or  they  are  dependent  at  the  time  of  the  death  of  such  parent, 
there  being  no  surviving  dependent  parent.  In  case  there  is 
more  than  one  child  thus  dependent,  the  compensation 
hereunder  shall  be  divided  equally  among  them. 

In  all  other  cases  questions  of  entire  or  partial  dependency 
shall  be  determined  in  accordance  with  the  fact  as  the  fact 
may  have  been  at  the  time  of  the  injury.  In  such  other 
cases,  if  there  is  more  than  one  person  wholly  dependent, 
the  compensation  shall  be  divided  equally  among  them,  and 
persons  partly  dependent,  if  any,  shall  receive  no  part 
thereof  during  the  period  in  which  compensation  is  paid  to 
persons  wholly  dependent.  If  there  is  no  one  wholly  de- 
pendent and  more  than  one  person  partly  dependent,  the 
compensation  shall  be  divided  among  them  according  to  the 
relative  extent  of  their  dependency. 

DEPENDENTS — HOW   DETERMINED 

Sec.  8.  No  person  shall  be  considered  a  dependent  unless 
he  is  a  member  of  the  employe's  family  or  next  of  kin  wholly 


1040    Bradbury's  workmen's  compensation  law 

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or  partly  dependent  upon  the  wages,  earnings  or  salary  of  the 
employ^  for  support  at  the  time  of  the  injury. 

FUNERAL   EXPENSES 

Sec.  9.  If  the  employe  dies  as  a  result  of  the  injury  leaving 
no  dependents  at  the  time  of  the  injury,  the  employer  shall 
pay,  in  addition  to  any  compensation  provided  for  in  this 
act  the  reasonable  expense  of  his  last  sickness  and  burial, 
which  shall  not  exceed  two  hundred  dollars. 


total  incapacity 

Sec.  10.  While  the  incapacity  for  work  resulting  from  the 
injury  is  total,  the  employer  shall  pay  the  injured  employe  a 
weekly  compensation  equal  to  one-half  his  average  weekly 
wages,  earnings  or  salary,  but  not  more  than  ten  dollars  nor 
less  than  four  dollars  a  week;  and  in  no  case  shall  the  period 
covered  by  such  compensation  be  greater  than  five  hundred 
weeks  from  the  date  of  the  injury.  In  the  following  cases  it 
shall,  for  the  purposes  of  this  section,  be  conclusively  pre- 
sumed that  the  injury  resulted  in  permanent  total  disability, 
to  wit :  The  total  and  irrecoverable  loss  of  sight  in  both  eyes, 
the  loss  of  both  feet  at  or  above  the  ankle,  the  loss  of  both 
hands  at  or  above  the  wrist,  the  loss  of  one  hand  and  one 
foot,  an  injury  to  the  spine  resulting  in  permanent  and  com- 
plete paralysis  of  the  legs  or  arms,  and  an  injury  to  the  skull 
resulting  in  incurable  imbecility  or  insanity. 

partial  incapacity 

Sec.  11.  While  the  incapacity  for  work  resulting  from  the 
injury  is  partial,  the  employer  shall  pay  the  injured  employe 
a  weekly  compensation  equal  to  one-half  the  difference  be- 
tween his  average  weekly  wages,  earnings  or  salary,  before 
the  injury  and  the  average  weekly  wages,  earnings  or  salary 
which  he  is  able  to  earn  thereafter,  but  not  more  than  ten 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by 


TEXTS   OF   COMPENSATION   ACTS  1041 

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such  compensation  be  greater  than  three  hundred  weeks  from 
the  date  of  the  injury. 


SPECIFIC    INJURIES 

Sec.  12.  In  case  of  the  following  specified  injuries  the 
amounts  named  in  this  section  shall  be  paid  in  addition  to  all 
other  compensation  provided  for  in  this  act. 

(a)  For  the  loss  by  severance  of  both  hands  at  or  above 
the  wrist,  or  both  feet  at  or  above  the  ankle,  or  the  loss  of 
one  hand  and  one  foot,  or  the  entire  and  irrecoverable  loss  of 
the  sight  of  both  eyes,  one-half  of  the  average  weekly  wages, 
earnings  or  salary  of  the  injured  person,  but  not  more  than 
ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period  of 
one  hundred  weeks. 

(6)  For  the  loss  by  severance  of  either  hand  at  or  above 
the  wrist,  or  either  foot  at  or  above  the  ankle,  or  the  entire 
and  irrecoverable  loss  of  the  sight  of  either  eye,  one-half  the 
average  weekly  wages,  earnings  or  salary  of  the  injured  per- 
son, but  not  more  than  ten  dollars  nor  less  than  four  dollars 
a  week,  for  a  period  of  fifty  weeks. 

(c)  For  the  loss  by  severance  at  or  above  the  second  joint 
of  two  or  more  fingers,  including  thumbs,  or  toes,  one-half 
the  average  weekly  wages,  earnings  or  salary  of  the  injured 
person  but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week,  for  a  period  of  twenty-five  weeks. 

{d)  For  the  loss  by  severance  of  at  least  one  phalange  of 
a  finger,  thumb,  or  toe,  one-half  the  average  weekly  wages, 
earnings  or  salary  of  the  injured  person,  but  not  more  than 
ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period  of 
twelve  weeks. 

AVERAGE   WEEKLY  WAGE  DEFINED 

Sec.  13.  The  "average  weekly  wages,  earnings,  or  salary" 
of  an  injured  employe  shall  be  computed  as  follows: — 

(a)  If  the  injured  employe  has  worked  in  the  same  em- 
66 


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ployment  in  which  he  was  working  at  the  time  of  the  acci- 
dent, whether  for  the  same  employer  or  not,  during  sub- 
stantially the  whole  of  the  year  immediately  preceding  his 
injury,  his  "average  weekly  wages"  shall  be  three  hundred 
times  the  average  daily  wages,  earnings  or  salary  which  he 
has  earned  in  such  employment  during  the  days  when  so 
employed  and  working  the  number  of  hours  constituting  a 
full  working  day  in  such  employment,  divided  by  fifty-two. 
But  where  the  employ^  is  employed  concurrently  by  two  or 
more  employers,  for  one  of  whom  he  works  at  one  time  and 
for  another  of  whom  he  works  at  another  time,  his  "average 
weekly  wages"  shall  be  computed  as  if  the  wages,  earnings 
or  salary  received  by  him  from  all  such  employers  were 
wages,  earnings  or  salary  earned  in  the  employment  of  the 
employer  for  whom  he  was  working  at  the  time  of  the  acci- 
dent. 

(b)  If  the  injured  employe  has  not  so  worked  in  such  em- 
ployment during  substantially  the  whole  of  such  immediately 
preceding  year,  his  "average  weekly  wages"  shall  be  three 
hundred  times  the  average  daily  wages,  earnings,  or  salary 
which  an  employe  of  the  same  class  working  substantially 
the  whole  of  such  immediately  preceding  year  in  the  same 
or  a  similar  employment,  in  the  same  or  a  neighboring  place, 
has  earned  in  such  employment  during  the  days  when  so 
employed  and  working  the  number  of  hours  constituting  a 
full  working  day  in  such  employment  divided  by  fifty-two. 

(c)  In  cases  where  the  foregoing  methods  of  arriving  at  the 
"average  weekly  wages,  earnings,  or  salary"  of  the  injured 
employ^  cannot  reasonably  and  fairly  be  applied,  such 
"average  weekly  wages"  shall  be  taken  at  such  sum  as, 
having  regard  to  the  previous  wages,  earnings  or  salary  of 
the  injured  employe,  and  of  other  employes  of  the  same  or 
most  similar  class,  working  in  the  same  or  most  similar  em- 
ployment in  the  same  or  a  neighboring  locality,  shall  rea- 
sonably represent  the  weekly  earning  capacity  of  the  injured 


TEXTS   OF   COMPENSATION   ACTS  1043 

Rhode  Island  and  Providence  Plantations 

employe  at  the  time  of  the  accident  in  the  emplojonent  in 
which  he  was  working  at  such  time. 

(d)  Where  the  employer  has  been  accustomed  to  pay  to 
the  employ^  a  sum  to  cover  any  special  expense  incurred  by 
said  employe  by  the  nature  of  his  employment,  the  sum  so 
paid  shall  not  be  reckoned  as  part  of  the  employe's  wages, 
earnings  or  salary. 

(e)  The  fact  that  an  employe  has  suffered  a  previous  in- 
jury, or  received  compensation  therefor,  shall  not  preclude 
compensation  for  a  later  injury  or  for  death;  but  in  deter- 
mining the  compensation  for  the  later  injury  or  death,  his 
"average  weekly  wages"  shall  be  such  sum  as  will  reasonably 
represent  his  weekly  earning  capacity  at  the  time  of  the  later 
injury,  in  the  employment  in  which  he  was  working  at  such 
time,  and  shall  be  arrived  at  according  to,  and  subject  to  the 
limitations  of,  the  previous  provisions  of  this  section. 

CONTRIBUTIONS   BY   EMPLOYE 

Sec.  14.  No  savings  or  insurance  of  the  injured  employ^, 
independent  of  this  act,  shall  be  taken  into  consideration  in 
determining  the  compensation  to  be  paid  hereunder,  nor  shall 
benefits  derived  from  any  other  source  than  the  employer 
be  considered  in  fixing  the  compensation  under  this  act. 

COMPENSATION — TO   WHOM   PAID 

Sec.  15.  The  compensation  payable  under  this  act  in  case 
of  the  death  of  the  injured  employ^  shall  be  paid  to  his  legal 
representatives;  or,  if  he  has  no  legal  representative,  to  his 
dependents  entitled  thereto,  or,  if  he  leaves  no  such  de- 
pendents, to  the  person  to  whom  the  expenses  for  the  burial 
and  last  sickness  are  due.  If  the  payment  is  made  to  the 
legal  representative  of  the  deceased  employ^,  it  shall  be  paid 
by  him  to  the  dependents  or  other  persons  entitled  thereto 
under  this  act.  All  payments  of  compensation  under  this 
act  shall  cease  upon  the  death  of  the  employe  from  a  cause 


1044    Bradbury's  workmen's  compensation  law 

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other  than  or  not  induced  by  the  injury  for  which  he  is  re- 
ceiving compensation. 

MINORS   AND    MENTALLY    INCOMPETENT 

Sec.  16.  In  case  an  injured  employe  is  mentally  incom- 
petent, or,  where  death  results  from  the  injury,  in  case  any 
of  his  dependents  entitled  to  compensation  hereunder  are 
mentally  incompetent  or  minors  at  the  time  when  any  right, 
privilege  or  election  accrues  to  him  or  them  under  this  act, 
his  conservator,  guardian,  or  next  friend  may,  in  his  behalf, 
claim  and  exercise  such  right,  privilege,  or  election,  and  no 
limitation  of  time  in  this  act  provided  shall  run  so  long  as 
such  incompetent  or  minor  has  no  conservator  or  guardian. 

NOTICE   OF   INJURY 

Sec.  17.  No  proceedings  for  compensation  for  an  injury  un- 
der this  act  shall  be  maintained  unless  a  notice  of  the  injury 
shall  have  been  given  to  the  employer  within  thirty  days  after 
the  happening  thereof;  and  unless  the  claim  for  compensation 
with  respect  to  such  injury  shall  have  been  made  within  one 
year  after  the  occurrence  of  the  same,  or,  in  case  of  the  death 
of  the  employe,  or  in  the  event  of  his  physical  or  mental  in- 
capacity, within  one  year  after  death  or  the  removal  of  such 
physical  or  mental  incapacity. 

Sec.  18.  Such  notice  shall  be  in  writing  and  shall  state  in 
ordinary  language  the  nature,  time,  place,  and  cause  of  the 
injury,  and  the  name  and  address  of  the  person  injured  and 
shall  be  signed  by  the  person  injured,  or  by  a  person  in  his 
behalf,  or,  in  the  event  of  his  death,  by  his  legal  representa- 
tive, or  by  a  dependent,  or  by  a  person  in  behalf  of  either. 

Sec.  19.  Such  notice  shall  be  served  upon  the  employer, 
or  upon  one  employer,  if  there  are  more  employers  than  one, 
or,  if  the  employer  is  a  corporation,  upon  any  officer  or  agent 
upon  whom  process  may  be  served,  by  delivering  the  same 
to  th6  person  on  whom  it  is  to  be  served,  or  by  leaving  it  at 


TEXTS   OF   COMPENSATION   ACTS  1045 

Rhode  Island  and  Providence  Plantations 

his  last  known  residence  or  place  of  business,  or  by  sending 
it  by  registered  mail  addressed  to  the  person  to  be  served, 
or,  in  the  case  of  a  corporation,  to  the  corporation  itself,  at 
his  or  its  last  known  residence  or  place  of  business;  and  such 
mailing  of  the  notice  shall  constitute  completed  service. 

Sec.  20.  A  notice  given  under  the  provisions  of  this  act 
shall  not  be  held  invalid  or  insufficient  by  reason  of  any 
inaccuracy  in  stating  the  nature,  time,  place  or  cause  of  the 
injury,  or  the  name  and  address  of  the  person  injured,  unless 
it  is  shown  that  it  was  the  intention  to  mislead  and  the  em- 
ployer was  in  fact  misled  thereby.  Want  of  notice  shall  not 
be  a  bar  to  proceedings  under  this  act,  if  it  be  shown  that  the 
employer  or  his  agent  had  knowledge  of  the  injury,  or  that 
failure  to  give  such  notice  was  due  to  accident,  mistake,  or 
unforeseen  cause. 

EXAMINATION    OF   INJURED 

Sec.  21.  The  employe  shall,  after  an  injury,  at  reasonable 
times  during  the  continuance  of  his  disability,  if  so  requested 
by  his  employer,  submit  himself  to  an  examination  by  a 
physician  or  surgeon  authorized  to  practice  medicine  under 
the  laws  of  the  state,  furnished  and  paid  for  by  the  employer. 
The  employe  shall  have  the  right  to  have  a  physician,  pro- 
vided and  paid  for  by  himself,  present  at  such  examination. 

Any  justice  of  the  superior  court  may,  at  any  time  after 
an  injury,  on  the  petition  of  the  employer  or  employe,  ap- 
point a  competent  and  impartial  physician  or  surgeon  to  act 
as  a  medical  examiner,  and  the  reasonable  fees  of  such  medi- 
cal examiner  as  fixed  by  the  justice  appointing  him  shall  be 
paid  by  the  party  moving  for  such  appointment. 

Such  medical  examiner  being  first  duly  sworn  to  the 
faithful  performance  of  his  duties  before  the  justice  appoint- 
ing him  or  clerk  of  the  court  shall  thereupon,  and  as  often 
as  necessary,  examine  such  injured  employ^  in  order  to 
determine  the  nature,  extent,  and  probable  duration  of  the 


1046    Bradbury's  workmen's  compensation  law 

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injury.  Such  medical  examiner  shall  file  a  report  of  every 
examination  made  of  such  employe  in  the  office  of  the  clerk 
of  the  superior  court  having  jurisdiction  of  the  matter  as 
provided  in  section  16  of  Article  III  of  this  act,  and  such 
report  shall  be  produced  in  evidence  in  any  hearing  or  pro- 
ceeding to  determine  the  amount  of  compensation  due  such 
employe  under  the  provisions  of  this  act.  If  such  employ^ 
refuses  to  submit  himself  for  any  examination  provided  for 
in  this  act,  or  in  any  way  obstructs  any  such  examination, 
his  rights  to  compensation  shall  be  suspended  and  his  com- 
pensation during  such  period  of  suspension  may  be  forfeited. 

NO  waiver  of  rights 

Sec.  22.  No  agreement  by  an  employ^,  except  as  provided 
in  Article  IV,  to  waive  his  rights  to  compensation  under  this 
act  shall  be  valid. 

claims  not  assignable 

Sec.  23.  No  claims  for  compensation  under  this  act,  or 
under  any  alternative  scheme  permitted  by  Article  IV  of 
this  act,  shall  be  assignable,  or  subject  to  attachment,  or 
liable  in  any  way  for  any  debts. 

claims  preferred 

Sec.  24.  The  claim  for  compensation  under  this  act,  or 
under  any  alternative  scheme  permitted  by  Article  IV  of  this 
act,  and  any  decree  on  any  such  claim,  shall  be  entitled  to  a 
preference  over  the  unsecured  debts  of  the  employer  here- 
after contracted  to  the  same  amount  as  the  wages  of  labor 
are  now  preferred  by  the  laws  of  this  state;  but  nothing 
herein  shall  be  construed  as  impairing  any  lien  which  the 
employe  may  have  acquired. 

PAYMENT   of   LUMP    SUM 

Sec.  25.  In  case  payments  have  continued  for  not  less 
than  six  months  either  party  may,  upon  due  notice  to  the 


TEXTS   OF   COMPENSATION"  ACTS  1047 

Rhode  Island  and  Providence  Plantations 

other  party,  petition  the  superior  court  for  an  order  com- 
muting the  future  payments  to  a  lump  sum.  Such  petition 
shall  be  considered  by  the  superior  court  and  may  be  sum- 
marily granted  where  it  is  shown  to  the  satisfaction  of  the 
court  that  the  payment  of  a  lump  sum  in  lieu  of  future 
weekly  payments  will  be  for  the  best  interest  of  the  person  or 
persons  receiving  or  dependent  upon  such  compensation,  or 
that  the  continuance  of  weekly  payments  will,  as  compared 
with  lump-sum  payments,  entail  undue  expense  or  undue 
hardship  upon  the  employer  liable  therefor,  or  that  the 
person  entitled  to  compensation  has  removed  or  is  about  to 
remove  from  the  United  States.  Where  the  commutation 
is  ordered  the  superior  court  shall  fix  the  lump  sum  to  be  paid 
at  an  amount  which  will  equal  the  total  sum  of  the  probable 
future  payments,  capitalized  at  their  present  value  upon  the 
basis  of  interest  calculated  at  five  per  centum  per  annum 
with  annual  rests.  Upon  paying  such  amount  the  employer 
shall  be  discharged  from  all  further  liability  on  account  of 
the  injury  or  death,  and  be  entitled  to  a  duly  executed  re- 
lease, upon  filing  which,  or  other  due  proof  of  payment,  the 
liability  of  such  employer  under  any  agreement,  award,  find- 
ings, or  decree  shall  be  discharged  of  record. 

ARTICLE  III 

Procedure 
agreement  as  to  compensation 

Section  1.  If  the  employer  and  the  employ^  reach  an 
agreement  in  regard  to  compensation  under  this  act,  a 
memorandum  of  such  agreement  signed  by  the  parties  shall 
be  filed  in  the  office  of  the  clerk  of  the  superior  court  having 
jurisdiction  of  the  matter  as  provided  in  section  16  of  this 
Article.  The  clerk  shall  forthwith  docket  the  same  in  a  book 
kept  for  that  purpose,  and  shall  thereupon  present  said  agree- 


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nicnt  to  a  justice  of  the  superior  court,  and  when  approved 
by  the  justice  the  agreement  shall  be  enforceable  by  said 
superior  court  by  any  suitable  process,  including  executions 
against  goods,  chattels,  and  real  estate,  and  including  pro- 
ceedings for  contempt  for  willful  failure  or  neglect  to  obey 
the  provisions  of  said  agreement.  No  appeal  shall  lie  from 
the  agreement  thus  approved  unless  upon  allegation  that 
such  agreement  had  been  procured  by  fraud  or  coercion. 
Such  agreement  shall  be  approved  by  the  justice  only  when 
its  terms  conform  to  the  provisions  of  this  act. 

When  death  has  resulted  from  the  injury  and  the  de- 
pendents of  the  deceased  employ^  entitled  to  compensation 
are,  or  the  apportionment  thereof  among  them  is,  in  dis- 
pute, such  agreement  may  relate  only  to  the  amount  of 
compensation. 

failure  to  agree 

Sec.  2.  If  the  employer  and  employ^  fail  to  reach  an  agree- 
ment in  regard  to  compensation  under  this  act,  either  em- 
ployer or  employ^,  and  when  death  has  resulted  from  the 
injury  and  the  dependents  of  the  deceased  employ^  entitled 
to  compensation  are,  or  the  apportionment  thereof  among 
them  is  in  dispute,  any  person  in  interest  may  file  in  the 
office  of  the  clerk  of  the  superior  court  having  jurisdiction 
of  the  matter  as  provided  in  section  16  of  this  Article,  a 
petition  in  the  nature  of  a  petition  in  equity  setting  forth 
the  names  and  residences  of  the  parties,  the  facts  relating 
to  employment  at  the  time  of  the  injury,  the  cause,  extent 
and  character  of  the  injury,  the  amount  of  wages,  earnings, 
or  salary  received  at  the  time  of  the  injury,  and  the  knowl- 
edge of  the  employer  or  notice  of  the  occurrence  of  the  injury 
and  such  other  facts  as  may  be  necessary  and  proper  for 
the  information  of  the  court,  and  shall  state  the  matter  in 
dispute  and  the  claims  of  the  petitioner  with  reference 
thereto. 


TEXTS   OF   COMPENSATION   ACTS  1049 

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copy    OF   PETITION 

Sec.  3.  Within  four  days  after  the  filing  of  the  petition,  a 
copy  thereof,  attested  by  the  petitioner  or  his  attorney, 
shall  be  served  upon  the  respondent  in  the  same  manner  as 
a  writ  of  summons  in  a  civil  action. 


ANSWER   TO   PETITION 

Sec.  4.  Within  ten  days  after  the  filing  of  the  petition, 
the  respondent  shall  file  an  answer  to  said  petition,  together 
with  a  copy  thereof  for  the  use  of  the  petitioner,  which  shall 
state  the  claims  of  the  respondent  with  reference  to  the  mat- 
ter in  dispute  as  disclosed  by  the  petition.  No  pleadings 
other  than  petition  and  answer  shall  be  required  to  bring 
the  cause  to  a  hearing  for  final  determination.  The  superior 
court  may  grant  further  time  for  filing  the  answer  and  allow 
amendments  of  said  petition  and  answer  at  any  stage  of  the 
proceedings.  If  the  respondent  do  not  file  an  answer,  the 
cause  shall  proceed  without  formal  default  or  decree  pro 
confesso.  If  the  respondent  be  an  infant  or  person  under 
disability,  the  superior  court  shall  appoint  a  guardian  ad 
litem  for  such  infant  or  person  under  disability.  Such  guar- 
dian ad  litem  may  be  appointed  on  any  court  day  after 
service  of  the  copy  referred  to  in  section  3  of  this  Article, 
upon  motion  of  any  party  after  notice  given  as  required  for 
motions  made  in  the  superior  court,  and  opportunity  to  said 
infant  or  person  under  disability  to  be  heard  in  regard  to 
the  choice  of  such  guardian  ad  litem.  The  guardian  ad 
litem  so  appointed  shall  file  the  answer  required  by  this 
section. 

ASSIGNMENT  FOR  HEARING 

Sec.  5.  The  petition  shall  be  in  order  for  assignment  for 
hearing  on  the  motion  day  which  occurs  next  after  fifteen 
days  from  the  filing  of  the  petition.  Upon  the  days  upon 
which  said  petition  shall  be  in  order  for  hearing  it  shall  take 


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precedence  of  other  cases  upon  the  calendar,  except  cases  for 
tenements  let  or  held  at  will  or  by  sufferance. 

hearing 

Sec.  6.  The  justice  to  whom  said  petition  shall  be  re- 
ferred by  the  court  shall  hear  such  witnesses  as  may  be  pre- 
sented by  each  party,  and  in  a  summary  manner  decide  the 
merits  of  the  controversy.  His  decision  shall  be  filed  in 
writing  with  the  clerk,  and  a  decree  shall  be  entered  thereon. 
Such  decree  shall  be  enforceable  by  said  superior  court  by 
any  suitable  process,  including  executions  against  goods, 
chattels,  and  real  estate,  and  including  proceedings  for  con- 
tempt for  willful  failure  or  neglect  to  obey  the  provisions  of 
said  decree.  Such  decree  shall  contain  findings  of  fact, 
which,  in  the  absence  of  fraud,  shall  be  conclusive.  The 
superior  court  may  award  as  costs  the  actual  expenditures, 
or  such  part  thereof  as  to  the  court  shall  seem  meet,  but  not 
including  counsel  fees,  and  shall  include  such  costs  in  its 
decree.  The  superior  court  may  refuse  to  award  costs,  and 
no  costs  shall  be  awarded  against  an  infant  or  person  under 
disability  or  against  a  guardian  ad  litem. 

appeal 

Sec.  7.  Any  person  aggrieved  by  the  final  decree  of  the 
superior  court  under  this  act  may  appeal  to  the  supreme 
court  upon  any  question  of  law  or  equity  decided  adversely 
to  the  appellant  by  said  final  decree  or  by  any  proceeding  or 
ruling  prior  thereto  appearing  of  record,  the  appellant  hav- 
ing first  had  his  objections  noted  to  any  adverse  rulings 
made  during  the  progress  of  the  trial  at  the  time  such  rulings 
were  made,  if  made  in  open  court  and  not  otherwise  of  record. 
The  appellant  shall  take  the  following  steps: 
(a)  Within  ten  days  after  entry  of  said  final  decree  he 
shall  file  a  claim  of  appeal  and,  if  a  transcript  of  the  testi- 
mony and  rulings  or  any  part  thereof  be  desired,  a  written 
request  therefor. 


TEXTS   OP   COMPENSATION   ACTS  1051 

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(b)  Within  such  time  as  the  justice  of  the  superior  court 
who  heard  the  petition,  or,  in  case  of  his  inability  to  act  from 
any  cause  within  such  time  as  any  other  justice  thereof  shall 
fix,  whether  by  original  fixing  of  the  time,  or  by  extension 
thereof,  or  by  a  new  fixing  after  any  expiration  thereof,  the 
appellant  shall  file  reasons  of  appeal  stating  specifically  all 
the  questions  of  law  or  equity  decided  adversely  to  him 
which  he  desires  to  include  in  his  reasons  of  appeal,  together 
with  a  transcript  of  as  much  of  the  testimony  and  rulings 
as  may  be  required.  The  supreme  court  may  allow  amend- 
ments of  said  reasons  of  appeal.  Upon  the  filing  of  said 
reasons  of  appeal  and  transcript,  the  clerk  of  the  superior 
court  shall  present  the  transcript  to  the  justice  who  heard 
the  cause  for  allowance.  The  justice  after  hearing  and 
examination,  shall  restore  the  transcript  to  the  files  of  the 
clerk  with  a  certificate  of  his  action  thereon  made  within 
twenty  days  after  filing  the  transcript,  unless  the  twentieth 
day  shall  fall  in  vacation,  in  which  event  the  certificate 
may  be  filed  at  any  time  before  the  first  Monday  in  the  fol- 
lowing month  of  October. 

If  the  transcript  be  not  allowed  by  the  justice  who  heard 
the  cause  within  the  time  prescribed,  or  objection  to  his 
allowance  be  made  by  any  party,  the  correctness  of  the 
transcript  may  be  determined  by  the  supreme  court  by  peti- 
tion filed  within  thirty  days  after  filing  the  transcript,  unless 
the  thirtieth  day  shall  fall  in  vacation,  in  which  event  the 
correctness  of  the  transcript  may  be  determined  by  petition 
filed  on  or  before  the  tenth  day  after  the  first  Monday  in  the 
following  month  of  October.  In  all  other  respects  than  in 
time  of  filing  the  same  course  shall  be  followed  as  provided 
in  section  21  of  Chapter  298  of  the  General  Laws  for  estab- 
lishing the  truth  of  exceptions. 

APPEAL 

Sec.  8.  Upon  the  restoration  of  the  transcript  to  the  files, 
or,  if  there  be  no  transcript,  then  upon  the  filing  of  the  rea- 


1052    Bradbury's  workmen  s  compensation  law 

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sons  of  appeal,  the  clerk  of  the  superior  court  shall  certify 
the  cause  and  all  papers  to  the  supreme  court. 


appeal  suspends  decree 

Sec.  9.  The  claim  of  an  appeal  shall  suspend  the  opera- 
tion of  the  decree  appealed  from,  but,  in  case  of  default  in 
taking  the  procedure  required,  such  suspension  shall  cease 
and  the  superior  court  upon  motion  of  any  party  shall  pro- 
ceed as  if  no  claim  of  appeal  had  been  made,  unless  it  be 
made  to  appear  to  the  superior  court  that  the  default  no 
longer  exists. 

MOTION   DAY 

Sec.  10.  Any  court  day  in  the  supreme  court  shall  be  a 
motion  day  for  the  purpose  of  hearing  a  motion  to  assign 
the  appeal  for  hearing. 

DECISION 

Sec.  11.  The  supreme  court  after  hearing  any  appeal  shall 
determine  the  same,  and  affirm,  reverse  or  modify  the  decree 
appealed  from,  and  may  itself  take,  or  cause  to  be  taken  by 
the  superior  court,  such  further  proceedings  as  shall  seem 
just.  If  a  new  decree  shall  be  necessary,  it  shall  be  framed 
by  the  supreme  court  for  entry  by  the  superior  court.  There- 
upon the  cause  shall  be  remanded  to  the  superior  court  for 
such  further  proceedings  as  shall  be  required. 

EXECUTION 

Sec.  12.  No  process  for  the  execution  of  a  final  decree  of 
the  superior  court  from  which  an  appeal  may  be  taken  shall 
issue  until  the  expiration  of  ten  days  after  the  entry  thereof, 
unless  all  parties  against  whom  such  decree  is  made  waive  an 
appeal  by  a  writing  filed  with  the  clerk  or  by  causing  an 
entry  thereof  to  be  made  on  the  docket. 


TEXTS   OF   COMPENSATION   ACTS  1053 

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QUESTIONS   OF  LAW 

Sec.  13.  If,  in  the  course  of  the  proceedings  in  any  cause, 
any  question  of  law  shall  arise  which  in  the  opinion  of  the 
superior  court  is  of  such  doubt  and  importance,  and  so  af- 
fects the  merits  of  the  controversy,  that  it  ought  to  be  de- 
termined by  the  supreme  court  before  further  proceedings, 
the  superior  court  may  certify  such  question  to  the  supreme 
court  for  that  purpose,  and  stay  all  further  proceedings 
except  such  as  are  necessary  to  preserve  the  rights  of  the 
parties. 

REVIEW    OF   DECREES 

Sec.  14.  At  any  time  before  the  expiration  of  two  years 
from  the  date  of  the  approval  of  an  agreement,  or  the  entry 
of  a  decree  fixing  compensation,  but  not  afterwards,  and  be- 
fore the  expiration  of  the  period  for  which  compensation  has 
been  fixed  by  such  agreement  or  decree,  but  not  afterwards, 
any  agreement,  award,  findings  or  decree  may  be  from  time 
to  time  reviewed  by  the  superior  court  upon  the  application 
of  either  party,  after  due  notice  to  the  other  party,  upon  the 
ground  that  the  incapacity  of  the  injured  employe  has  sub- 
sequently ended,  increased,  or  diminished.  Upon  such  re- 
view the  court  may  increase,  diminish,  or  discontinue  the 
compensation  from  the  date  of  the  application  for  review,  in 
accordance  with  the  facts,  or  make  such  other  order  as  the 
justice  of  the  case  may  require,  but  shall  order  no  change  of 
the  status  existing  prior  to  the  application  for  review.  The 
finding  of  the  court  upon  such  review  shall  be  served  on  the 
parties  and  filed  with  the  clerk  of  the  court  having  jurisdic- 
tion, in  like  time  and  manner  and  subject  to  like  disposition 
as  in  the  case  of  original  decrees;  provided  that  an  agreement 
for  compensation  may  be  modified  at  any  time  by  a  subse- 
quent agreement  between  the  parties  approved  by  the  su- 
perior court  in  the  same  manner  as  original  agreements  in 


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regard  to  compensation  are  required  to  be  approved  by  the 
provisions  of  Section  1  of  Article  III  of  this  act. 


PROCEDURE 

Sec.  15.  The  superior  court  shall  prescribe  forms  and 
make  suitable  orders  as  to  procedure  adapted  to  secure  a 
speedy,  efficient  and  inexpensive  disposition  of  all  proceed- 
ings under  this  act;  and  in  making  such  orders  said  court 
shall  not  be  bound  by  the  provisions  of  the  General  Laws 
relating  to  practice.  In  the  absence  of  such  orders,  special 
orders  shall  be  made  in  each  case. 

ACTIONS  WHERE   BROUGHT 

Sec.  16.  Proceedings  shall  be  brought  either  in  the  county 
where  the  accident  occurred  or  in  the  county  where  the  em- 
ployer or  employe  lives  or  has  a  usual  place  of  business. 
The  court  where  any  proceeding  is  brought  shall  have  power 
to  grant  a  change  of  venue. 

ACTIONS   NOT  TO  ABATE 

Sec.  17.  No  proceedings  under  this  act  shall  abate  be- 
cause of  the  death  of  the  petitioner,  but  may  be  prosecuted 
by  his  legal  representative  or  by  any  person  entitled  to  com- 
pensation by  reason  of  said  death,  under  the  provisions  of 
this  act. 

CLAIM   WHEN   BARRED 

Sec.  18.  An  employe's  claim  for  compensation  under  this 
act  shall  be  barred  unless  an  agreement  or  a  petition,  as 
provided  in  this  Article,  shall  be  filed  within  two  years  after 
the  occurrence  of  the  injury,  or,  in  case  of  the  death  of  the 
employ^,  or,  in  the  event  of  his  physical  or  mental  incapacity, 
within  two  years  after  the  death  of  the  employe  or  the  re- 
moval of  such  physical  or  mental  incapacity. 


TEXTS   OF   COMPENSATION   ACTS  1056 

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MONTHLY   PAYMENTS 

Sec,  19.  If  an  employe  receiving  a  weekly  payment  un- 
der this  act  shall  cease  to  reside  in  the  state,  or,  if  his  resi- 
dence at  the  time  of  the  accident  is  in  an  adjoining  state, 
the  superior  court,  upon  the  application  of  either  party, 
may,  in  its  discretion,  having  regard  to  the  welfare  of  the 
employe  and  the  convenience  of  the  employer,  order  such 
payment  to  be  made  monthly  or  quarterly  instead  of  weekly. 

COUET   SETTLES    QUESTIONS 

Sec.  20.  All  questions  arising  under  this  act,  if  not  settled 
by  agreement  of  the  parties  interested  therein,  shall,  except 
as  otherwise  herein  provided,  be  determined  by  the  superior 
court. 

LIABILITY   OF   OTHER   THAN   EMPLOYER 

Sec.  21.  Where  the  injury  for  which  compensation  is  pay- 
able under  this  act  was  caused  under  circumstances  creating 
a  legal  liability  in  some  person  other  than  the  employer  to 
pay  damages  in  respect  thereof,  the  employe  may  take  pro- 
ceedings both  against  that  person  to  recover  damages  and 
against  any  person  liable  to  pay  compensation  under  this  act 
for  such  compensation,  but  shall  not  be  entitled  to  receive 
both  damages  and  compensation;  and  if  the  employe  has 
been  paid  compensation  under  this  act,  the  person  by  whom 
the  compensation  was  paid  shall  be  entitled  to  indemnity 
from  the  person  so  liable  to  pay  damages  as  aforesaid,  and, 
to  the  extent  of  such  indemnity,  shall  be  subrogated  to  the 
rights  of  the  employe  to  recover  damages  therefor. 

ARTICLE  IV 

ALTERNATIVE  SCHEMES  PERMITTED 
EMPLOYER  AND  EMPLOY^  MAY  AGREE 

Section  1.  Any  employer  may  enter  into  an  agreement 
with  his  employes  in  any  employment  to  which  this  act  ap- 


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plies  to  provide  a  scheme  of  compensation,  benefit,  or  insur- 
ance, in  lieu  of  the  compensation  provided  for  in  this  act, 
subject  to  the  approval  of  the  superior  court.  Such  approval 
shall  be  granted  only  on  condition  that  the  scheme  proposed 
provides  as  great  benefits  as  those  provided  by  this  act;  and, 
if  the  scheme  provides  for  contributions  by  employes,  it 
shall  confer  additional  benefits  at  least  equivalent  to  these 
contributions.  If  such  a  scheme  meets  with  the  approval  of 
said  court,  the  clerk  shall  issue  a  certificate  enabling  the 
employer  to  contract  with  any  or  all  of  his  employes  in  em- 
ployments to  which  this  act  applies  to  substitute  such 
scheme  for  the  provisions  of  this  act  for  a  period  of  not  more 
than  five  years. 

AGREEMENT   MUST   CONTAIN 

Sec.  2.  No  scheme  which  provides  for  contributing  by 
employ6s  shall  be  so  certified  which  does  not  contain  suitable 
provisions  for  the  eqtiitable  distribution  of  any  money  or 
securities  held  for  the  purpose  of  the  scheme,  after  due  pro- 
vision has  been  made  to  discharge  the  liabilities  already 
incurred,  if  and  when  such  certificate  is  revoked  or  the 
scheme  otherwise  terminated. 

AGREEMENT   REVOKED 

Sec.  3.  If  at  any  time  the  scheme  no  longer  fulfills  the  re* 
quirements  of  this  Article,  or  is  not  fairly  administered,  or 
any  other  valid  and  substantial  reason  therefor  exists,  the 
superior  court,  on  reasonable  notice  to  the  interested  parties, 
shall  revoke  the  certificate  and  the  scheme  shall  thereby  be 
terminated. 

ARTICLE  V 

MISCELLANEOUS   PROVISIONS 

Section  1.  In  this  act,  unless  the  context  otherwise  re- 
quires: 


TEXTS   OF   COMPENSATION   ACTS  1057 

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(a)  ''Employer"  includes  any  person,  copartnership,  cor- 
poration or  voluntary  association,  and  the  legal  representa- 
tive of  a  deceased  employer. 

(6)  "Employe"  means  any  person  who  has  entered  into 
the  employment  of,  or  works  under  contract  of  service  oi* 
apprenticeship  with,  an  employer,  and  whose  remuneration 
does  not  exceed  eighteen  hundred  dollars  a  year.  It  does  not 
include  a  person  whose  employment  is  of  a  casual  nature, 
and  who  is  employed  otherwise  than  for  the  purpose  of  the 
employer's  trade  or  business.  Any  reference  to  an  employe 
who  has  been  injured  shall,  where  the  employe  is  dead,  in- 
clude a  reference  to  his  dependents  as  hereinbefore  defined, 
or  to  his  legal  representative,  or,  where  he  is  a  minor,  or  in- 
competent, to  his  conservator  or  guardian. 

Sec.  2.  Nothing  in  this  act  shall  affect  the  liability  of  the 
employer  to  a  fine  or  penalty  under  any  other  statute. 

Sec.  3.  The  provisions  of  this  act  shall  not  apply  to  in- 
juries sustained,  or  accidents  which  occur,  prior  to  the  taking 
effect  hereof. 

Sec.  4.  If  any  section  of  this  act  shall  be  declared  uncon- 
stitutional or  invalid,  such  unconstitutionality  or  invalidity 
shall  in  no  way  affect  the  validity  of  any  other  portion  thereof 
which  can  be  given  reasonable  effect  without  the  part  so 
declared  unconstitutional  or  invalid. 

Sec.  5.  In  all  cases  where  an  employer  and  employ^  shall 
have  elected  to  become  subject  to  the  provisions  of  this  act, 
the  provisions  of  section  14  of  Chapter  283  of  the  General 
Laws  shall  not  apply  while  this  act  is  in  effect. 

Sec.  6.  All  acts  and  parts  of  acts  inconsistent  herewith 
are  hereby  repealed. 

Sec.  7.  This  act  may  be  cited  as  "Workmen's  Compensa- 
tion Act." 

Sec.  8.  This  act  shall  take  effect  on  the  first  day  of  Octo- 
ber, nineteen  hundred  and  twelve. 

Approved  by  Governor,  April  29,  1912. 
67 


1058    bradbuey's  workmen's  compensation  law 


Washington 


WASHINGTON 

(L.  1911,  c.  74) 

An  act  relating  to  the  compensation  of  injured  workmen  in 
our  industries,  and  the  compensation  to  their  dependents 
where  such  injuries  result  in  death,  creating  an  industrial 
insurance  department,  making  an  appropriation  for  its 
administration,  providing  for  the  creation  and  disburse- 
ment of  funds  for  the  compensation  and  care  of  workmen 
injured  in  hazardous  employment,  providing  penalties 
for  the  nonobservance  of  regulations  for  the  prevention 
of  such  injuries  and  for  violation  of  its  provisions,  assert- 
ing and  exercising  the  police  power  in  such  cases,  and, 
except  in  certain  specified  cases,  abolishing  the  doctrine 
of  negligence  as  a  ground  for  recovery  of  damages  against 
employers,  and  depriving  the  courts  of  jurisdiction  of 
such  controversies,  and  repealing  sections  6594,  6595 
and  6596  of  Remington  and  Ballinger's  Annotated  Codes 
and  Statutes  of  Washington,  relating  to  employes  in 
factories,  mills  or  workshops  where  machinery  is  used, 
actions  for  the  recovery  of  damages  and  prescribing  a 
punishment  for  violation  thereof. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washing- 
ton: 

DECLARATION  OF  POLICE  POWER 

Section  1.  The  common  law  system  governing  the  remedy 
of  workmen  against  employers  for  injuries  received  in  hazard- 
ous work  is  inconsistent  with  modern  industrial  conditions. 
In  practice  it  proves  to  be  economically  unwise  and  unfair. 
Its  administration  has  produced  the  result  that  little  of 
the  cost  of  the  employer  has  reached  the  workman  and  that 
little  only  at  large  expense  to  the  public.  The  remedy  of 
the  workman  has  been  uncertain,   slow  and  inadequate. 


TEXTS   OF   COMPENSATION   ACTS  1059 

Washington 

Injuries  in  such  works,  formerly  occasional,  have  become 
frequent  and  inevitable.  The  welfare  of  the  State  depends 
upon  its  industries,  and  even  more  upon  the  welfare  of  its 
wage-worker.  The  State  of  Washington,  therefore,  exer- 
cising herein  its  police  and  sovereign  power,  declares  that 
all  phases  of  the  premises  are  withdrawn  from  private  con- 
troversy, and  sure  and  certain  relief  for  workmen,  injured 
in  extra  hazardous  work,  and  their  families  and  dependents 
is  hereby  provided  regardless  of  questions  of  fault  and 
to  the  exclusion  of  every  other  remedy,  proceeding  or  com- 
pensation, except  as  otherwise  provided  in  this  act;  and 
to  that  end  all  civil  actions  and  civil  causes  of  action  for 
such  personal  injuries  and  all  jurisdiction  of  the  courts  of 
the  State  over  such  causes  are  hereby  abolished,  except  as 
in  this  act  provided. 

ENUMERATION  OF  EXTRA  HAZARDOUS  WORKS 

Sec.  2.  There  is  a  hazard  in  all  employment,  but  certain 
employments  have  come  to  be,  and  to  be  recognized  as 
being  inherently  constantly  dangerous.  This  act  is  intended 
to  apply  to  all  such  inherently  hazardous  works  and  occupa- 
tions, and  it  is  the  purpose  to  embrace  all  of  them,  which 
are  within  the  legislative  jurisdiction  of  the  State,  in  the 
following  enumeration,  and  they  are  intended  to  be  em- 
braced within  the  term  "extra  hazardous"  wherever  used 
in  this  act,  to-wit: 

Factories,  mills  and  workshops  where  machinery  is  used; 
printing,  electrotyping,  photo-engraving  and  stereotyping 
plants  where  machinery  is  used;  foundries,  blast  furnaces, 
mines,  wells,  gas  works,  waterworks,  reduction  works,  brew- 
eries, elevators,  wharves,  docks,  dredges,  smelters,  powder 
works;  laundries  operated  by  power;  quarries;  engineer- 
ing works;  logging,  lumbering  and  ship  building  operations; 
logging,  street  and  interurban  railroads;  buildings  being 
constructed,  repaired,  moved  or  demolished;  telegraph, 
telephone,  electric  light  or  power  plants  or  lines,   steam 


1060    Bradbury's  workmen's  compensation  law 

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heating  or  power  plants,  steamboats,  tugs,  ferries  and 
railroads.  If  there  be  or  arise  any  extra  hazardous  occupa- 
tion or  work  other  than  those  hereinabove  enumerated,  it 
shall  come  under  this  act,  and  its  rate  of  contribution  to 
the  accident  fund  hereinafter  established,  shall  be,  until 
fixed  by  legislation,  determined  by  the  department  herein- 
after created,  upon  the  basis  of  the  relation  which  the  risk 
involved  bears  to  the  risks  classified  in  section  4. 

DEFINITIONS 

Sec.  3.  In  the  sense  of  this  act  words  employed  mean 
as  here  stated,  to-wit : 

Factories  mean  undertakings  in  which  the  business  of 
working  at  commodities  is  carried  on  with  power-driven 
machinery,  either  in  manufacture,  repair  or  change,  and 
shall  include  the  premises,  yard  and  plant  of  the  concern. 

Workshop  means  any  plant,  yard,  premises,  room  or  place 
wherein  power-driven  machinery  is  employed  and  manual 
labor  is  exercised  by  way  of  trade  for  gain  or  otherwise  in  or 
incidental  to  the  process  of  making,  altering,  repairing, 
printing  or  ornamenting,  finishing  or  adapting  for  sale  or 
otherwise  any  article  or  part  of  article,  machine  or  thing, 
over  which  premises,  room  or  place  the  employer  of  the 
person  working  therein  has  the  right  of  access  or  control. 

Mill  means  any  plant,  premises,  room  or  place  where 
machinery  is  used,  any  process  of  machinery,  changing, 
altering  or  repairing  any  article  or  commodity  for  sale  or 
otherwise,  together  with  the  yards  and  premises  which  are 
a  part  of  the  plant,  including  elevators,  warehouses  and 
bunkers. 

Mine  means  any  mine  where  coal,  clay,  ore,  mineral, 
gypsum  or  rock  is  dug  or  mined  underground. 

Quarry  means  an  open  cut  from  which  coal  is  mined,  or 
clay,  ore,  mineral,  gypsum,  sand,  gravel  or  rock  is  cut  or 
taken  for  manufacturing,  building  or  construction. 


TEXTS   OF   COMPENSATION   ACTS  1061 

Washington 

Engineering  work  means  any  work  of  construction,  im- 
provement or  alteration  or  repair  of  buildings,  structures, 
streets,  highways,  sewers,  street  railways,  railroads,  log- 
ging roads,  interurban  railroads,  harbors,  docks,  canals; 
electric,  steam  or  water  power  plants;  telegraph  and  tele- 
phone plants  and  lines;  electric  light  or  power  lines,  and 
includes  any  other  works  for  the  construction,  alteration  or 
repair  of  which  machinery  driven  by  mechanical  power  is 
used. 

Except  when  otherwise  expressly  stated,  employer  means 
any  person,  body  of  persons,  corporate  or  otherwise,  and  the 
legal  personal  representatives  of  a  deceased  employer,  all 
while  engaged  in  this  State  in  any  extra  hazardous  work. 

Workman  means  every  person  in  this  State,  who,  after 
September  30,  1911,  is  engaged  in  the  employment  of  an 
employer  carrying  on  or  conducting  any  of  the  industries 
scheduled  or  classified  in  section  4,  whether  by  way  of  man- 
ual labor  or  otherwise,  and  whether  upon  the  premises  or 
at  the  plant  or,  he  being  in  the  course  of  his  employment, 
away  from  the  plant  of  his  employer:  Provided,  however, 
That  if  the  injury  to  a  workman  occurring  away  from  the 
plant  of  his  employer  is  due  to  the  negligence  or  wrong  of 
another  not  in  the  same  employ,  the  injured  workman,  or 
if  death  result  from  the  injury,  his  widow,  children  or  de- 
pendents, as  the  case  may  be,  shall  elect  whether  to  take 
under  this  act  or  seek  a  remedy  against  such  other,  such 
election  to  be  in  advance  of  any  suit  under  this  section;  and 
if  he  take  under  this  act,  the  cause  of  action  against  such 
other  shall  be  assigned  to  the  State  for  the  benefit  of  the 
accident  fund;  if  the  other  choice  is  made,  the  accident  fund 
shall  contribute  only  the  deficiency,  if  any,  between  the 
amount  of  recovery  against  such  third  person  actually  col- 
lected, and  the  compensation  provided  or  estimated  by  this 
act  for  such  case.  Any  such  cause  of  action  assigned  to  the 
State  may  be  prosecuted,  or  compromised  by  the  depart- 


1062    Bradbury's  workmen's  compensation  law 

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ment,  in  its  discretion.  Any  compromise  by  the  workman 
of  any  such  suit,  which  would  leave  a  deficiency  to  be  made 
good  out  of  the  accident  fund,  may  be  made  only  with  the 
written  approval  of  the  department. 

Any  individual  etnployer  or  any  member  or  officer  of  any 
corporate  employer  who  shall  be  carried  upon  the  pay  roll  at 
a  salary  or  wage  not  less  than  the  average  salary  or  wage 
named  in  such  pay  roll  and  who  shall  be  injured,  shall  be 
entitled  to  the  benefit  of  this  act  as  and  under  the  same  cir- 
cumstances as  and  subject  to  the  same  obligations  as  a  work- 
man. 

Dependent  means  any  of  the  following  named  relatives  of 
a  workman  whose  death  results  from  any  injury  and  who 
leaves  surviving  no  widow,  widower,  or  child  under  the  age 
of  sixteen  years,  viz.;  invalid  child  over  the  age  of  sixteen 
years,  daughter,  between  sixteen  and  eighteen  years  of  age, 
father,  mother,  grandfather,  grandmother,  step-father,  step- 
mother, grandson,  granddaughter,  step-son,  step-daughter, 
brother,  sister,  half-sister,  half-brother,  niece,  nephew,  who, 
at  the  time  of  the  accident,  are  dependent,  in  whole  or  in 
part,  for  their  support  upon  the  earnings  of  the  workman. 
Except  where  otherwise  provided  by  treaty,  aliens,  other 
than  father  or  mother,  not  residing  within  the  United  States 
at  the  time  of  the  accident,  are  not  included. 

Beneficiary  means  a  husband,  wife,  child  or  dependent  of 
a  workman,  in  whom  shall  vest  a  right  to  receive  payment 
under  this  act. 

Invalid  means  one  who  is  physically  or  mentally  incapac- 
itated from  earning. 

The  word  "child,"  as  used  in  this  act,  includes  a  post- 
humous child,  a  child  legally  adopted  prior  to  the  injury, 
and  an  illegitimate  child  legitimated  prior  to  the  injury. 

The  words  injury  or  injured,  as  used  in  this  act,  refer  only 
to  an  injury  resulting  from  some  fortuitous  event  as  dis- 
tinguished from  the  contraction  of  disease. 


TEXTS   OF   COMPENSATION   ACTS  1063 

Washington 


SCHEDULE   OF  CONTRIBUTION 

Sec.  4.  Insomuch  as  industry  should  bear  the  greater 
portion  of  the  burden  of  the  cost  of  its  accidents,  each  em- 
ployer shall,  prior  to  January  15th  of  each  year,  pay  into  the 
state  treasury,  in  accordance  with  the  following  schedule,  a 
sum  equal  to  a  percentage  of  his  total  pay  roll  for  that  year, 
to-wit  (the  same  being  deemed  the  most  accurate  method"  of 
equitable  distribution  of  burden  in  proportion  to  relative 
hazard) : 

Construction  Work 

Tunnels;  bridges;  trestles;  sub-aqueous  works;  ditches 
and  canals  (other  than  irrigation  without  blasting) ; 
dock  excavation;  fire  escapes;  sewers;  house  moving; 

house  wrecking 065 

Iron,  or  steel  frame  structures  or  parts  of  structures . .     .080 
Electric  light  or  power  plants  or  systems;  telegraph  or 

telephone  systems;  pile  driving;  steam  railroads.  . .  .050 
Steeples,  towers  or  grain  elevators,  not  metal  framed; 
dry-docks  without  excavation;  jetties;  breakwaters; 
chimneys;  marine  railways;  waterworks  or  systems; 
electric  railways  with  rock  work  or  blasting;  blast- 
ing; erecting  fireproof  doors  or  shutters 050 

Steam  heating  plants;  tanks,  water  towers  or  wind- 
mills, not  metal  frames 040 

Shaft  sinking 060 

Concrete  buildings;  freight  or  passenger  elevators; 
fireproofing  of  buildings;  galvanized  iron  or  tin 
works;  gas  works,  or  systems;  marble,  stone  or  brick 
work;  road  making  with  blasting;  roof  work;  safe 
moving;  slate  work;  outside  plumbing  work;  metal 

smokestacks  or  chimneys 050 

Excavations  not  otherwise  specified ;  blast  furnaces .  . .     .040 
Street  or  other  grading;  cable  or  electric  street  railways 


1064    Bradbury's  workmen's  compensation  law 

Washington 

without  blasting;  advertising  signs;  ornamental 
metal  work  in  buildings 035 

Ship  or  boat  building  or  wrecking  with  scaffolds;  float- 
ing docks 045 

Carpenter  work  not  otherwise  specified 035 

Installation  of  steam  boilers  or  engines;  placing  wire  in 
conduits;  installing  dynamos;  putting  up  belts  for 
machinery;  marble,  stone  or  tile  setting,  inside  work; 
mantel  setting;  metal  ceiling  work;  mill  or  ship 
wrighting;  painting  of  buildings  or  structures;  in- 
stallation of  automatic  sprinklers;  ship  or  boat  rig- 
ging; concrete  laying  in  floors,  foundations  or  street 
paving;  asphalt  laying;  covering  steam  pipes  or  boil- 
ers; installation  of  machinery  not  otherwise  specified     .030 

Drilling  wells;  installing  electrical  apparatus  or  fire 
alarm  systems  in  buildings;  house  heating  or  ventil- 
ating systems;  glass  setting;  building  hot  houses; 
lathing;  paper  hanging;  plastering;  inside  plumbing; 
wooden  stair  building;  road  making 020 

Operation  (Including  Repair  Work)  of    ■ 

(All  combinations  of  material  take  the  higher  rate  when 

not  otherwise  provided.) 

Logging  railroads;  railroads;  dredges;  interurban 
electric  railroads  using  third  rail  system;  dry  or 
floating  docks 050 

Electric  light  or  power  plants;  interurban  electric  rail- 
roads not  using  third  rail  system;  quarries 040 

Street  railways,  all  employes;  telegraph  or  telephone 
systems;  stone  crushing;  blasting  furnaces;  smelters; 
coal  mines;  gas  works;  steamboats;  tugs;  ferries. . .     .030 

Mines,    other    than    coal;    steam   heating   or   power 

plants 025 

Grain  elevators;  laundries;  waterworks;  paper  or  pulp 
mills;  garbage  works 020 


TEXTS   OF   COMPENSATION   ACTS  1065 

Washington 

Factories  Using  Power-Driven  Machinery 

Stamping  tin  or  metal 045 

Bridge  work;  railroad  car  or  locomotive  making  or  re- 
pairing; cooperage;  logging  with  or  without  machin- 
ery; saw  mills;  shingle  mills;  staves;  veneer;  box; 
lath;  packing  cases;  sash,  door  or  blinds;  barrel; 
keg;  pail;  basket;  tub;  wooden  ware  or  wooden 
fibre  ware;  rolling  mills;  making  steam  shovels  or 
dredges;  tanks;  water  towers;  asphalt;  building 
material  not  otherwise  specified;  fertilizer;  cement; 
stone  with  or  without  machinery;  kindling  wood; 
masts  and  spars  with  or  without  machinery;  can- 
neries, metal  stamping  extra;  creosoting  works; 
pile  treating  works 025 

Excelsior;  iron,  steel,  copper,  zinc,  brass  or  lead 
articles  or  wares  not  otherwise  specified;  working  in 
wood  not  otherwise  specified;  hardware;  tile;  brick; 
terra  cotta;  fire  clay;  pottery;  earthenware;  porce- 
lain ware;  peat  fuel;  brickettes 020 

Breweries;  bottling  works;  boiler  works;  foundries; 

machine  shops  not  otherwise  specified 020 

Cordage;  working  in  food  stuffs,  including  oils,  fruits 
and  vegetables;  working  in  wool,  cloth,  leather, 
paper,  broom,  brush,  rubber  or  textiles  not  otherwise 
specified 015 

Making  jewelry,  soap,  tallow,  lard,  grease,  condensed 
milk 015 

Creameries;  printing;  electrotyping;  photo-engraving; 
lithographing 015 

Miscellaneous  Work 

Stevedoring;  longshoring 030 

Operating  stock  yards,  with  or  without  railroad  entry; 

packing  houses .025 


1066    Bradbury's  workmen's  compensation  law 

Washington 

Wharf  operation;  artificial  ice,  refrigerating  or  cold 
storage  plants;  tanneries;  electric  systems  not  other- 
wise specified 020 

Theater  stage  employes 015 

Fire  works  manufacturing 050 

Powder  works 100 

The  application  of  this  act  as  between  employers  and  work- 
men shall  date  from  and  include  the  first  day  of  October, 
1911.  The  payment  for  1911  shall  be  made  prior  to  the  day 
last  named,  and  shall  be  preliminarily  collected  upon  the  pay 
roll  of  the  last  preceding  three  months  of  operation.  At  the 
end  of  each  year  an  adjustment  of  accounts  shall  be  made 
upon  the  basis  of  the  actual  pay  roll.  Any  shortage  shall  be 
made  good  on  or  before  February  1st,  following.  Every 
employer  who  shall  enter  into  business  at  any  intermediate 
day  shall  make  his  payment  for  the  initial  year  or  portion 
thereof  before  commencing  operation;  its  amount  shall  be 
calculated  upon  his  estimated  pay  roll,  an  adjustment  shall 
be  made  on  or  before  February  1st  of  the  following  year  in 
the  manner  above  provided. 

For  the  purpose  of  such  payments  accoimts  shall  be  kept 
with  each  industry  in  accordance  with  the  classification 
herein  provided  and  no  class  shall  be  liable  for  the  depletion 
of  the  accident  fund  from  accidents  happening  in  any  other 
class.  Each  class  shall  meet  and  be  liable  for  the  accidents 
occurring  in  such  class.  There  shall  be  collected  from  each 
class  as  an  initial  payment  into  the  accident  fund  as  above 
specified  on  or  before  the  1st  day  of  October,  1911,  one-fourth 
of  the  premium  of  the  next  succeeding  year,  and  one-twelfth 
thereof  at  the  close  of  each  month  after  December,  1911: 
Provided,  Any  class  having  sufficient  funds  credited  to  its 
account  at  the  end  of  the  first  three  months  or  any  month 
thereafter,  to  meet  the  requirements  of  the  accident  fund, 
that  class  shall  not  be  called  upon  for  such  month.    In  case 


TEXTS   OF   COMPENSATION   ACTS  1067 

Washington 

of  accidents  occurring  in  such  class  after  lapsed  payment 
or  payments  said  class  shall  pay  the  said  lapsed  or  deferred 
payments  commencing  at  the  first  lapsed  payment,  as  may 
be  necessary  to  meet  such  requirements  of  the  accident  fund. 

The  fund  thereby  created  shall  be  termed  the  "accident 
fund"  which  shall  be  devoted  exclusively  to  the  purpose 
specified  for  it  in  this  act. 

In  that  the  intent  is  that  the  fund  created  under  this  sec- 
tion shall  ultimately  become  neither  more  or  less  than  self- 
supporting,  exclusive  of  the  expense  of  administration,  the 
rates  in  this  section  named  are  subject  to  future  adjustment 
by  the  legislature,  and  the  classifications  to  rearrangement 
following  any  relative  increase  or  decrease  of  hazard  shown  by 
experience. 

It  shall  be  unlawful  for  the  employer  to  deduct  or  obtain 
any  part  of  the  premium  required  by  this  section  to  be  by 
him  paid  from  the  wages  or  earnings  of  his  workmen  or 
any  of  them,  and  the  making  or  attempt  to  make  any  such 
deduction  shall  be  a  gross  misdemeanor.  If,  after  this  act 
shall  have  come  into  operation,  it  is  shown  by  experience 
under  the  act,  because  of  poor  or  careless  management,  any 
establishment  or  work  is  unduly  dangerous  in  comparison 
with  other  like  establishments  or  works,  the  department 
may  advance  its  classification  of  risks  and  premium  rates 
in  proportion  to  the  undue  hazard.  In  accordance  with  the 
same  principle,  any  such  increase  in  classification  or  premium 
rate,  shall  be  subject  to  restoration  to  the  schedule  rate. 
Any  such  change  in  classification  of  risks  or  premium  rates, 
or  any  change  caused  by  change  in  the  class  of  work,  occurring 
during  the  year  shall,  at  the  time  of  the  annual  adjustment, 
be  adjusted  by  the  department  in  proportion  to  its  duration 
in  accordance  with  the  schedule  of  this  section.  If,  at  the 
end  of  any  year,  it  shall  be  seen  that  the  contribution  to  the 
accident  fund  by  any  class  of  industry  shall  be  less  than  the 
drain  upon  the  fund  on  account  of  that  class,  the  deficiency 


1068    Bradbury's  workmen's  compensation  law 

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- 

shall  be  made  good  to  the  fund  on  the  1st  day  of  February 
of  the  following  year  by  the  employers  of  that  class  in  pro- 
portion to  their  respective  payments  for  the  past  year. 

For  the  purposes  of  such  payment  and  making  good  of 
deficit,  the  particular  classes  of  industry  shall  be  as  fol- 
lows: 

CONSTRUCTION  WORK 

Class    1.  Tunnels;   sewer;   shaft   sinking;   drilling  wells. 

Class  2.  Bridges;  mill  wrighting;  trestles;  steeples,  towers 
or  grain  elevators  not  metal  framed;  tanks,  water  towers, 
wind-mills  not  metal  framed. 

Class  3.  Sub-aqueous  works;  canal  other  than  irrigation 
or  docks  with  or  without  blasting;  pile  driving;  jetties; 
breakwaters;  marine  railways. 

Class  4.  House  moving;  house  wrecking;  safe  moving. 

Class  5.  Iron  or  steel  frame  structures  or  parts  of  structures ; 
fire  escapes;  erecting  fire  proof  doors  or  shutters;  blast 
furnaces;  concrete  chimneys;  freight  or  passenger  elevators; 
fire  proofing  of  buildings;  galvanized  iron  or  tin  work; 
marble,  stone  or  brick  work;  roof  work;  slate  work;  plumbing 
work;  metal  smoke  stack  or  chimneys;  advertising  signs; 
ornamental  metal  work  in  buildings;  carpenter  work  not 
otherwise  specified;  marble,  stone  or  tile  setting;  mantel 
setting ;  metal  ceiling  work ;  painting  of  buildings  or  structures ; 
concrete  laying  in  floors  o5r  foundations,  glass  setting;  building 
hot  houses;  lathing;  paper  hanging;  plastering;  wooden  star 
building. 

Class  6.  Electric  light  and  power  plants  or  system;  tel- 
egraph or  telephone  systems;  cable  or  electric  railways  with 
or  without  rock  work  or  blasting;  waterworks  or  systems; 
steam  heating  plants;  gas  works  or  systems;  installation  of 
steam  boilers  or  engines;  placing  wires  in  conduits;  installing 
dynamos;  putting  up  belts  for  machinery;  installation  of 
automatic  sprinklers;  covering  steam  pipes  or  boilers;  in- 
stallation of  machinery  not  otherwise  specified;  installing 


TEXTS   OF   COMPENSATION   ACTS  1069 

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electrical  apparatus  or  fire  alarm  systems  in  buildings;  house 
heating  or  ventilating  systems. 

Class  7.  Steam  railroads;  logging  railroads. 

Class  8.  Road  making;  street  or  other  grading;  concrete 
laying  in  street  paving;  asphalt  laying. 

Class  9.  Ship  or  boat  building  with  scaffolds ;  ship  wrighting ; 
ship  or  boat  rigging;  floating  docks. 

OPERATION    (including  REPAIR  WORk)    OF 

Class  10.  Logging;  saw  mills;  shingle  mills;  lath  mills; 
masts  and  spars  with  or  without  machinery. 

Class  12.  Dredges;  dry  or  floating  docks. 

Class  13.  Electric  light  or  power  plants  or  systems;  steam 
heat  or  power  plants  or  systems;  electric  systems  not  other- 
wise specified. 

Class  14.  Street  railways. 

Class  15.    Telegraph  systems;  telephone  systems. 

Class  16.    Coal  mines. 

Class  17.  Quarries;  stone  crushing;  mines  other  than  coal. 

Class  18.  Blast  furnaces;  smelters;  rolling  mills. 

Class  19.  Gas  works. 

Class  20.  Steamboats;  tugs;  ferries. 

Class  21.  Grain  elevators. 

Class  22.  Laundries. 

Class 23.  Waterworks. 

Class  24.  Paper  or  pulp  mills. 

Class  25.  Garbage  works;  fertilizer. 

FACTORIES  (using  POWER-DRIVEN  MACHINERY) 

Class  26.  Stamping  tin  or  metal. 

Class  27.  Bridge  work;  making  steam  shovels  or  dredges; 
tanks;  water  towers. 

Class  28.  Railroad  car  or  locomotive  making  or  repairing. 

Class  29.  Cooperage;  staves;  veneer;  box  packing  cases; 
sash  [,]  door  or  blinds;  barrel;  keg;  pail;  basket;  tub;  wood 


1070    Bradbury's  workmen's  compensation  law 

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ware  or  wood  fibre  ware;  kindling  wood;  excelsior;  working 
in  wood  not  otherwise  specified. 

Class  30.  Asphalt. 

Class  31.  Cement;  stone  with  or  without  machinery; 
building  material  not  otherwise  specified. 

Class  32.  Canneries  of  fruits  or  vegetables. 

Class  33.  Canneries  of  fish  or  meat  products. 

Class  34.  Iron,  steel,  copper,  zinc,  brass  or  lead  articles 
or  wares;  hardware;  boiler  works;  foundries;  machine  shops 
not  otherwise  specified. 

Class  35.  Tile ;  brick ;  terra  cotta ;  fire  clay ;  pottery ;  earthen- 
ware; porcelain  ware. 

Class  36.  Peat  fuel;  brickettes. 

Class  37.  Breweries;  bottling  works. 

Class  38.  Cordage;  working  in  wool,  cloth,  leather,  paper, 
brush,  rubber  or  textile  not  otherwise  specified. 

Class  39.  Working  in  food  stuffs,  including  oils,  fruits, 
vegetables. 

Class  40.  Condensed  milk;  creameries. 

Class  41.  Printing,  electrotyping;  photo-engraving;  en- 
graving; lithographing;  making  jewelry. 

Class  42.  Stevedoring;     longshoring;    wharf    operation. 

Class  43.  Stock  yards;  packing  houses;  making  soap, 
tallow,  lard,  grease;  tanneries. 

Class  44.  Artificial  ice,  refrigerating  or  cold  storage  plants. 

Class  45.  Theatre  stage  employes. 

Class  46.  Fire  works  manufacturing;  powder  works. 

Class  47.  Cresoting  works;  pile  treating  "works. 

If  a  single  establishment  or  work  comprises  several  oc- 
cupations listed  in  this  section  in  different  risk  classes,  the 
premium  shall  be  computed  according  to  the  pay  roll  of  each 
occupation  if  clearly  separable;  otherwise  an  average  rate 
of  premium  shall  be  charged  for  the  entire  establishment, 
taking  into  consideration  the  number  of  employes  and  the 
relative  hazards.    If  an  employer  besides  employing  work- 


TEXTS   OF   COMPENSATION   ACTS  1071 

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men  in  extra  hazardous  employment  shall  also  employ  work- 
men in  employment  not  extra  hazardous  the  provisions  of 
this  act  shall  apply  only  to  the  extra  hazardous  departments 
and  employments  and  the  workmen  employed  therein.  In 
computing  the  pay  roll  the  entire  compensation  received 
by  every  workman  employed  in  extra  hazardous  employ- 
ment shall  be  included,  whether  it  be  in  the  form  of  salary; 
wage,  piece  work,  overtime,  or  any  allowance  in  the  way  of 
profit-sharing,  premium  or  otherwise,  and  whether  payable 
in  money,  board,  or  otherwise. 

SCHEDULE  OF  AWARDS 

Sec.  5.  Each  workman  who  shall  be  injured  whether 
upon  the  premises  or  at  the  plant  or,  he  being  in  the 
course  of  his  employment,  away  from  the  plant  of  his 
employer,  or  his  family  or  dependents  in  case  of  death 
of  the  workman,  shall  receive  out  of  the  accident  fund  com- 
pensation in  accordance  with  the  following  schedule,  and 
except  as  in  this  act  otherwise  provided,  such  payment  shall 
be  in  lieu  of  any  and  all  rights  of  action  whatsoever  against 
any  person  whomsoever. 

COMPENSATION  SCHEDULE 

(a)  Where  death  results  from  the  injury  the  expenses 
of  burial  shall  be  paid  in  all  cases,  not  to  exceed  $75.00  in  any 
case,  and 

(1)  If  the  workman  leaves  a  widow  or  invalid  widower, 
a  monthly  payment  of  $20.00  shall  be  made  throughout  the 
life  of  the  surviving  spouse,  to  cease  at  the  end  of  the  month 
in  which  remarriage  shall  occur;  and  the  surviving  spouse 
shall  also  receive  $5.00  per  month  for  each  child  of  the 
deceased  under  the  age  of  sixteen  years  at  the  time  of  the 
occurrence  of  the  injury  until  such  minor  child  shall  reach 
the  age  of  sixteen  years,  but  the  total  monthly  payment 
under  this  paragraph  (1)  of  subdivision  (a)  shall  not  exceed 


1072    Bradbury's  workmen's  compensation  law 

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$35.00.  Upon  remarriage  of  a  widow  she  shall  receive,  once 
and  for  all,  a  lump  sum  equal  to  twelve  times  her  monthly- 
allowance,  viz.:  the  sum  of  $240.00,  but  the  monthly  pay- 
ment for  the  child  or  children  shall  continue  as  before. 

(2)  If  the  workman  leaves  no  wife  or  husband,  but  a 
child  or  children  under  the  age  of  sixteen  years,  a  monthly 
payment  of  $10.00  shall  be  made  to  each  such  child  until 
such  child  shall  reach  the  age  of  sixteen  years,  but  the  total 
monthly  payment  shall  not  exceed  $35.00,  and  any  deficit 
shall  be  deducted  proportionately  among  the  beneficiaries. 

(3)  If  the  workman  leaves  no  widow,  widower,  or  child 
under  the  age  of  sixteen  years,  but  leaves  a  dependent  or 
dependents,  a  monthly  payment  shall  be  made  to  each  de- 
pendent equal  to  fifty  per  cent  of  the  average  monthly  support 
actually  received  by  such  dependent  from  the  workman  dur- 
ing the  twelve  months  next  preceding  the  occurrence  of  the 
injury,  but  the  total  payment  to  all  dependents  in  any  case 
shall  not  exceed  $20.00  per  month.  If  any  dependent  is 
under  the  age  of  sixteen  years  at  the  time  of  the  occurrence 
of  the  injury,  the  payment  to  such  dependent  shall  cease 
when  such  dependent  shall  reach  the  age  of  sixteen  years. 
The  payment  to  any  dependent  shall  cease  if  and  when, 
under  the  same  circumstances,  the  necessity  creating  the 
dependency  would  have  ceased  if  the  injury  had  not  happened. 

If  the  workman  is  under  the  age  of  twenty-one  years  and 
unmarried  at  the  time  of  his  death,  the  parents  or  parent 
of  the  workman  shall  receive  $20.00  per  month  for  each  month 
after  his  death  until  the  time  at  which  he  would  have  arrived 
at  the  age  of  twenty-one  years. 

(4)  In  the  event  a  surviving  spouse  receiving  monthly 
payments  shall  die,  leaving  a  child  or  children  under  the 
age  of  sixteen  years,  the  sum  he  or  she  shall  be  receiving 
on  account  of  such  child  or  children  shall  be  thereafter, 
until  such  child  shall  arrive  at  the  age  of  sixteen  years,  paid 
to  the  child  increased  100  per  cent,  but  the  total  to  all 


TEXTS   OF   COMPENSATION   ACTS  1073 

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children  shall  not  exceed  the  sum  of  thirty-five  dollars  per 
month. 

(b)  Permanent  total  disability  means  the  loss  of  both 
legs  or  both  arms,  or  one  leg  and  one  arm,  total  loss  of  eye- 
sight, paralysis  or  other  condition  permanently  incapacitating 
the  workman  from  performing  any  work  at  any  gainful 
occupation. 

When  permanent  total  disability  results  from  the  injury 
the  workman  shall  receive  monthly  during  the  period  of 
such  disability: 

(1)  If  unmarried  at  the  time  of  the  injury,  the  sum  of 
$20.00. 

(2)  If  the  workman  have  a  wife  or  invalid  husband,  but 
no  child  under  the  age  of  sixteen  years,  the  sum  of  $25.00. 
If  the  husband  is  not  an  invalid,  the  monthly  payment  of 
$25.00  shall  be  reduced  to  $15.00. 

(3)  If  the  workman  have  a  wife  or  husband  and  a  child 
or  children  under  the  age  of  sixteen  years,  or,  being  a  widow 
or  widower,  have  any  such  child  or  children,  the  monthly 
payment  provided  in  the  preceding  paragraph  shall  be  in- 
creased by  five  dollars  for  each  such  child  until  such  child 
shall  arrive  at  the  age  of  sixteen  years,  but  the  total  monthly 
payment  shall  not  exceed  thirty-five  dollars. 

(c)  If  the  injured  workman  die  during  the  period  of  total 
disability,  whatever  the  cause  of  death,  leaving  a  widow, 
invalid  widower  or  child  under  the  age  of  sixteen  years, 
the  surviving  widow  or  invalid  widower  shall  receive  twenty 
dollars  per  month  until  death  or  remarriage,  to  be  increased 
five  dollars  per  month  for  each  child  under  the  age  of  sixteen 
years  until  such  child  shall  arrive  at  the  age  of  sixteen  years 
but  if  such  child  is  or  shall  be  without  father  or  mother,  such 
child  shall  receive  ten  dollars  per  month  until  arriving  at 
the  age  of  sixteen  years.  The  total  combined  monthly 
payment  under  this  paragraph  shall  in  no  case  exceed  thirty- 
five  dollars.     Upon  remarriage  the  payments  on  account 

68 


1074 

Washington 

of  a  child  or  children  shall  continue  as  before  to  the  child 
or  children. 

(d)  When  the  total  disability  is  only  temporary,  the 
schedule  of  payment  contained  in  paragraphs  (1),  (2)  and 
(3)  of  the  foregoing  subdivision  (d)  shall  apply  so  long  as 
the  total  disability  shall  continue,  increased  50  per  cent 
for  the  first  six  months  of  such  continuance,  but  in  no  case 
shall  the  increase  operate  to  make  the  monthly  payment 
exceed  sixty  per  cent  of  the  monthly  wage  (the  daily  wage 
multiplied  by  twenty-six)  the  workman  was  receiving  at 
the  time  of  his  injury.  As  soon  as  recovery  is  so  complete 
that  the  present  earning  power  of  the  workman,  at  any 
kind  of  work,  is  restored  to  that  existing  at  the  time  of  the 
occurrence  of  the  injury  the  payments  shall  cease.  If  and 
so  long  as  the  present  earning  power  is  only  partially  restored 
the  payments  shall  continue  in  the  proportion  which  the 
new  earning  power  shall  bear  to  the  old.  No  compensation 
shall  be  payable  out  of  the  accident  fund  unless  the  loss  of 
earning  power  shall  exceed  five  per  cent. 

(e)  For  every  case  of  injury  resulting  in  death  or  per- 
manent total  disability  it  shall  be  the  duty  of  the  department 
to  forthwith  notify  the  state  treasurer,  and  he  shall  set  apart 
out  of  the  accident  fund  a  sum  of  money  for  the  case,  to  be 
known  as  the  estimated  lump  value  of  the  monthly  payments 
provided  for  it,  to  be  calculated  upon  the  theory  that  a 
monthly  payment  of  twenty  dollars,  to  a  person  thirty 
years  of  age,  is  equal  to  a  lump  sum  payment,  according  to 
the  expectancy  of  life  as  fixed  by  the  American  Mortality 
Table,  of  four  thousand  dollars,  but  the  total  in  no  case  to 
exceed  the  sum  of  four  thousand  dollars.  The  state  treasurer 
shall  invest  said  sum  at  interest  in  the  class  of  securities 
provided  by  law  for  the  investment  of  the  permanent  school 
fund,  and  out  of  the  same  and  its  earnings  shall  be  paid  the 
monthly  installments  and  any  lump  sum  payment  then  or 
thereafter  arranged  for  the  case.     Any  deficiency  shall  be 


TEXTS   OF   COMPENSATION   ACTS  1075 

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made  good  out  of,  and  any  balance  or  overplus  shall  revert 
to  the  accident  fund.  The  state  treasurer  shall  keep  accurate 
account  of  all  such  segregations  of  the  accident  fund,  and 
may  borrow  from  the  main  fund  to  meet  monthly  pay- 
ments pending  conversion  into  cash  of  any  security  and, 
in  such  case  shall  repay  such  temporary  loan  out  of  the  cash 
realized  from  the  security. 

(f)  Permanent  partial  disability  means  the  loss  of  either 
one  foot,  one  leg,  one  hand,  one  arm,  one  eye,  one  or  more 
fingers,  one  or  more  toes,  any  dislocation  where  ligaments 
are  severed,  or  any  other  injury  known  in  surgery  to  be 
permanent  partial  disability.  For  any  permanent  partial 
disability  resulting  from  an  injury,  the  workman  shall  rcr 
ceive  compensation  in  a  lump  sum  in  an  amount  equal  to 
the  extent  of  the  injury,  to  be  decided  in  the  first  instance 
by  the  department,  but  not  in  any  case  to  exceed  the  sum 
of  $1,500.00.  The  loss  of  one  major  arm  at  or  above  the 
elbow  shall  be  deemed  the  maximum  permanent  partial 
disability.  Compensation  for  any  other  permanent  partial 
disability  shall  be  in  the  proportion  which  the  extent  of  such 
disability  shall  bear  to  the  said  maximum.  If  the  injured 
workman  be  under  the  age  of  twenty-one  years  and  unmarried, 
the  parents  or  parent  shall  also  receive  a  lump  sum  payment 
equal  to  ten  per  cent  of  the  amount  awarded  the  minor 
workman. 

(g)  Should  a  further  accident  occur  to  a  workman  already 
receiving  a  monthly  payment  under  this  section  for  a  tem- 
porary disability,  or  who  has  been  previously  the  recipient 
of  a  lump  sum  payment  under  this  act,  his  future  compen- 
sation shall  be  adjusted  according  to  the  other  provisions 
of  this  section  and  with  regard  to  the  combined  effect  of  his 
injuries,  and  his  past  receipt  of  money  under  this  act. 

(h)  If  aggravation,  diminution,  or  termination  of  dis- 
ability takes  place  or  be  discovered  after  the  rate  of  com- 
pensation terminated  in  any  case  the  department  may,  upon 


1076    Bradbury's  workmen's  compensation  law 

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the  application  of  the  beneficiary  or  upon  its  own  motion, 
readjust  for  future  application  the  rate  of  compensation  in 
accordance  with  the  rules  in  this  section  provided  for  the 
same,  or  in  a  proper  case  terminate  the  payments. 

(i)  A  husband  or  wife  of  an  injured  workman,  living  in 
a  state  of  abandonment  for  more  than  one  year  at  the  time 
of  the  injury  or  subsequently,  shall  not  be  a  beneficiary 
under  this  act. 

(j)  If  a  beneficiary  shall  reside  or  remove  out  of  the  State 
the  department  may,  in  its  discretion,  convert  any  monthly 
payments  as  provided  for  such  case  into  a  lump  sum  pay- 
ment (not  in  any  case  to  exceed  $4,000.00)  upon  the  theory, 
according  to  the  expectancy  of  life  as  fixed  by  the  American 
Mortality  Table,  that  a  monthly  payment  of  $20.00  to  a 
person  thirty  years  of  age  is  worth  $4,000.00,  or,  with  the 
consent  of  the  beneficiary,  for  a  smaller  sum. 

(k)  Any  court  review  under  this  section  shall  be  initiated 
in  the  county  where  the  workman  resides  or  resided  at  the 
time  of  the  injury,  or  in  which  the  injury  occurred. 

intentional  injuries — status  of  minors 

Sec.  6.  If  injury  or  death  results  to  a  workman  from  the  de- 
liberate intention  of  the  workman  himself  to  produce  such  in- 
jury or  death,  neither  the  workman  nor  the  widow,  widower, 
child  or  dependent  of  the  workman  shall  receive  any  pay- 
ment whatsoever  out  of  the  accident  fund.  If  injury  or 
death  results  to  a  workman  from  the  deliberate  intention  of 
his  employer  to  produce  such  injury  or  death,  the  workman, 
the  widow,  widower,  child  or  dependent  of  the  workman 
shall  have  the  privilege  to  take  under  this  act  and  also  have 
cause  of  action  against  the  employer,  as  if  this  act  had  not 
been  enacted,  for  any  excess  of  damage  over  the  amount 
received  or  receivable  under  this  act. 

A  minor  working  at  an  age  legally  permitted  under  the 
laws  of  this  State  shall  be  deemed  sui  juris  for  the  purpose 


TEXTS   OF   COMPENSATION   ACTS  1077 

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of  this  act,  and  no  other  person  shall  have  any  cause  or 
action  or  right  to  compensation  for  an  injury  to  such  minor 
workman  except  as  expressly  provided  in  this  act,  but  in 
the  event  of  a  lump  sum  payment  becoming  due  under  this 
act  to  such  minor  workman,  the  management  of  the  sum 
shall  be  within  the  probate  jurisdiction  of  the  courts  the 
same  as  other  property  of  minors. 

CONVERSION   INTO   LUMP   SUM   PAYMENT 

Sec.  7.  In  case  of  death  or  permanent  total  disability  the 
monthly  payment  provided  may  be  converted,  in  whole  or  in 
part,  into  a  lump  sum  payment  (not  in  any  case  to  exceed 
$4,000.00),  on  the  theory,  according  to  the  expectancy  of  life  as 
fixed  by  the  American  Mortality  Table,  that  a  monthly  pay- 
ment of  $20.00  to  a  person  thirty  years  of  age  is  worth  the  sum 
of  $4000.00,  in  which  event  the  monthly  payment  shall  cease 
in  whole  or  in  part  accordingly  or  proportionately.  Such 
conversion  may  only  be  made  after  the  happening  of  the 
injury  and  upon  the  written  application  of  the  beneficiary 
(in  case  of  minor  children,  the  application  may  be  by  either 
parent)  to  the  department,  and  shall  rest  in  the  discretion 
of  the  department.  Within  the  rule  aforesaid  the  amount 
and  value  of  the  lump  sum  payment  may  be  agreed  upon 
between  the  department  and  the  beneficiary. 

DEFAULTING  EMPLOYERS 

Sec.  8.  If  any  employer  shall  default  in  any  payment  to 
the  accident  fund  hereinbefore  in  this  act  required,  the  sum 
due  shall  be  collected  by  action  at  law  in  the  name  of  the 
State  as  plaintiff,  and  such  right  of  action  shall  be  in  ad- 
dition to  any  other  right  of  action  or  remedy.  In  respect 
to  any  injury  happening  to  any  of  his  workmen  during  the 
period  of  any  default  in  the  payment  of  any  premium  under 
section  4,  the  defaulting  employer  shall  not,  if  such  default 
be  after  demand  for  payment,  be  entitled  to  the  benefits 


1078    Bradbury's  workmen's  compensation  law 

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of  this  act,  but  shall  be  liable  to  suit  by  the  injured  work- 
man (or  the  husband,  wife,  child  or  dependent  of  such  work- 
man in  case  death  result  from  the  accident),  as  he  would  have 
been  prior  to  the  passage  of  this  act. 

In  case  the  recovery  actually  collected  in  such  suit  shall 
equal  or  exceed  the  compensation  to  which  the  plaintiff 
therein  would  be  entitled  under  this  act,  the  plaintiff  shall 
not  be  paid  anything  out  of  the  accident  fund;  if  the  said 
amount  shall  be  less  than  such  compensation  under  this  act, 
the  accident  fund  shall  contribute  the  amount  of  the  de- 
ficiency. The  person  so  entitled  under  the  provisions  of 
this  section  to  sue  shall  have  the  choice  (to  be  exercised  be- 
fore suit)  of  proceeding  by  suit  or  taking  under  this  act.  If 
such  person  shall  take  under  this  act,  the  cause  of  action 
against  the  employer  shall  be  assigned  to  the  State  for  the 
benefit  of  the  accident  fund.  In  any  suit  brought  upon 
such  cause  of  action  the  defense  of  fellow  servant  and  as- 
sumption of  risk  shall  be  inadmissible,  and  the  doctrine  of 
comparative  negligence  shall  obtain.  Any  such  cause  of 
action  assigned  to  the  State  may  be  prosecuted  or  compro- 
mised by  the  department  is  its  discretion.  Any  compromise 
by  the  workman  of  any  such  suit,  which  would  have  a  de- 
ficiency to  be  made  good  out  of  the  accident  fund,  may  be 
made  only  with  the  written  approval  of  the  department. 

employer's  responsibility  for  safeguard 

Sec.  9.  If  any  workman  shall  be  injured  because  of  the 
absence  of  any  safeguard  or  protection  required  to  be  pro- 
vided or  maintained  by,  or  pursuant  to,  any  statute  or  ordi- 
nance, or  any  departmental  regulation  under  any  statute, 
or  be,  at  the  time  of  the  injury,  of  less  than  the  maximum 
age  prescribed  by  law  for  the  employment  of  a  minor  in  the 
occupation  in  which  he  shall  be  engaged  when  injured,  the 
employer  shall,  within  ten  days  after  demand  therefor  by 
the  department,  pay  into  the  accident  fund,  in  addition  to 
the  same  required  by  section  4  to  be  paid: 


TEXTS   OF   COMPENSATION   ACTS  1079 

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(a)  In  case  the  consequent  payment  to  the  workman 
out  of  the  accident  fund  be  a  lump  sum,  a  sum  equal  to  50 
per  cent  of  that  amount. 

(b)  In  case  the  consequent  payment  to  the  workman  be 
payable  in  monthly  payments,  a  sum  equal  to  50  per  cent 
of  the  lump  value  of  such  monthly  payment,  estimated 
in  accordance  with  the  rule  stated  in  section  7. 

The  foregoing  provisions  of  this  act  shall  not  apply  to 
the  employer  if  the  absence  of  such  guard  or  protection 
be  due  to  the  removal  thereof  by  the  injured  workman 
himself  or  with  his  knowledge  by  any  of  his  fellow  workmen, 
unless  such  removal  be  by  order  or  direction  of  the  employer 
or  superintendent  or  foreman  of  the  employer,  or  any  one 
placed  by  the  employer  in  control  or  direction  of  such  work- 
man. If  the  removal  of  such  guard  or  protection  be  by  the 
workman  himself  or  with  his  consent  by  any  of  his  fellow 
workmen,  unless  done  by  order  or  direction  of  the  employer 
or  the  superintendent  or  foreman  of  the  employer,  or  any 
one  placed  by  the  employer  in  control,  or  direction  of  such 
workman,  the  schedule  of  compensation  provided  in  sec- 
tion 5  shall  be  reduced  10  per  cent  for  the  individual  case 
of  such  workman. 

EXEMPTION  OF  AWARDS 

Sec.  10.  No  money  paid  or  payable  under  this  act  out 
of  the  accident  fund  shall,  prior  to  issuance  and  delivery  of 
the  warrant  therefor,  be  capable  of  being  assigned,  charged, 
nor  ever  be  taken  in  execution  or  attached  or  garnished, 
nor  shall  the  same  pass  to  any  other  person  by  operation 
of  law.   Any  such  assignment  or  charge  shall  be  void. 

NONWAIVER  OF  ACT  BY  CONTRACT 

Sec.  11.  No  employer  or  workman  shall  exempt  himself 
from  the  burden  or  waive  the  benefits  of  this  act  by  any  con- 


1080    Bradbury's  workmen's  compensation  law 

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tract,  agreement,  rule  or  regulation,  and  any  such  contract, 
agreement,  rule  or  regulation  shall  be  pro  tanio  void. 

FILING  claim  for  COMPENSATION 

Sec.  12.  (a)  Where  a  workman  is  entitled  to  compensation 
under  this  act  he  shall  file  with  the  department,  his  applica- 
tion for  such,  together  with  the  certificate  of  the  physician  who 
attended  him,  and  it  shall  be  the  duty  of  the  physician  to 
inform  the  injured  workman  of  his  rights  under  this  act  and  to 
lend  all  necessary  assistance  in  making  this  application  for 
compensation  and  such  proof  of  other  matters  as  required  by 
the  rules  of  the  department  without  charge  to  the  workman. 

(b)  Where  death  results  from  injury  the  parties  entitled 
to  compensation  under  this  act,  or  some  one  in  their  behalf, 
shall  make  application  for  the  same  to  the  department,  which 
application  must  be  accompanied  with  proof  of  death  and 
proof  of  relationship  showing  the  parties  to  be  entitled  to 
compensation  under  this  act,  certificates  of  attending  physi- 
cian, if  any,  and  such  other  proof  as  required  by  the  rules 
of  the  department. 

(c)  If  change  of  circumstance  warrant  an  increase  or 
rearrangement  of  compensation,  like  application  shall  be 
made  therefor.  No  increase  or  rearrangement  shall  be  opera- 
tive for  any  period  prior  to  application  therefor. 

(d)  No  application  shall  be  valid  or  claim  thereunder 
enforceable  unless  filed  within  one  year  after  the  day  upon 
which  the  injury  occurred  or  the  right  thereto  accrued. 

MEDICAL   examination 

Sec.  13.  Any  workman  entitled  to  receive  compensation 
under  this  act  is  required,  if  requested  by  the  department, 
to  submit  himself  for  medical  examination  at  a  time  and  from 
time  to  time  at  a  place  reasonably  convenient  for  the  work- 
man and  as  may  be  provided  by  the  rules  of  the  department. 
If  the  workman  refuses  to  submit  to  any  such  examination, 


TEXTS   OF   COMPENSATION   ACTS  1081 

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or  obstructs  the  same,  his  rights  to  monthly  payments  shall 
be  suspended  until  such  examination  has  taken  place,  and 
no  compensation  shall  be  payable  during  or  for  account  of 
such  period. 

NOTICE  OF  ACCIDENT 

Sec.  14  Whenever  any  accident  occurs  to  any  workman 
it  shall  be  the  duty  of  the  employer  to  at  once  report  such 
accident  and  the  injury  resulting  therefrom  to  the  department 
and  also  to  any  local  representative  of  the  department. 
Such  report  shall  state : 

1.  The  time,  cause  and  nature  of  the  accident  and  injuries, 
and  the  probable  duration  of  the  injury  resulting  therefrom. 

2.  Whether  the  accident  arose  out  of  or  in  the  course  of 
the  injured  person's  employment. 

3.  Any  other  matters  the  rules  and  regulations  of  the  de- 
partment may  prescribe. 

INSPECTION  OP  employer's  BOOKS 

Sec.  15.  The  books,  records  and  pay  rolls  of  the  employer 
pertinent  to  the  administration  of  this  act  shall  always  be 
open  to  inspection  by  the  department  or  its  traveling  auditor, 
agent  or  assistant,  for  the  purpose  of  ascertaining  the  correct- 
ness of  the  pay  roll,  the  men  employed,  and  such  other  in- 
formation as  may  be  necessary  for  the  department  and  its 
management  under  this  act.  Refusal  on  the  part  of  the 
employer  to  submit  said  books,  records  and  pay  rolls  for 
such  inspection  to  any  member  of  the  commission,  or  any 
assistant  presenting  written  authority  from  the  commission, 
shall  subject  the  offending  employer  to  a  penalty  of  one 
hundred  dollars  for  each  offense,  to  be  collected  by  civil 
action  in  the  name  of  the  State  and  paid  into  the  accident 
fund,  and  the  individual  who  shall  personally  give  such 
refusal  shall  be  guilty  of  misdemeanor. 


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PENALTY  FOR  MISREPRESENTATION  AS  TO  PAY  ROLL 

Sec.  16.  Any  employer  who  shall  misrepresent  to  the 
department  the  amount  of  pay  roll  upon  which  the  premium 
under  this  act  is  based  shall  be  liable  to  the  State  in  ten 
times  the  amount  of  the  difference  in  premium  paid  and  the 
amount  the  employer  should  have  paid.  The  liability  to  the 
State  under  this  section  shall  be  enforced  in  a  civil  action 
in  the  name  of  the  State.  All  sums  collected  under  this  sec- 
tion shall  be  paid  into  the  accident  fund. 

PUBLIC  AND  CONTRACT  WORK 

Sec.  17.  Whenever  the  State,  county  or  any  municipal 
corporation  shall  engage  in  any  extra  hazardous  work  in 
which  workmen  are  employed  for  wages,  this  act  shall  be 
applicable  thereto.  The  employer's  payments  into  the 
accident  fund  shall  be  made  from  the  treasury  of  the  State, 
county  or  municipality.  If  said  work  is  being  done  by  con- 
tract, the  pay  roll  of  the  contractor  and  the  sub-contractor 
shall  be  the  basis  of  computation,  and  in  the  case  of  contract 
work  consuming  less  than  one  year  in  performance  the 
required  payment  into  the  accident  fund  shall  be  based  upon 
the  total  pay  roll.  The  contractor  and  any  sub-contractor 
shall  be  subject  to  the  provisions  of  the  act,  and  the  State 
for  its  general  fund,  the  county  or  municipal  corporation 
shall  be  entitled  to  collect  from  the  contractor  the  full  amount 
payable  to  the  accident  fund,  and  the  contractor,  in  turn 
shall  be  entitled  to  collect  from  the  sub-contractor  his  pro- 
portionate amount  of  the  payment.  The  provisions  of  this 
section  shall  apply  to  all  extra  hazardous  work  done  by 
contract,  except  that  in  private  work  the  contractor  shall 
be  responsible,  primarily  and  directly,  to  the  accident  fund 
for  the  proper  percentage  of  the  total  pay  roll  of  the  work 
and  the  owner  of  the  property  affected  by  the  contract  shall 
be  surety  for  such  payments.  Whenever  and  so  long  as, 
by  state  law,  city  charter  or  municipal  ordinance,  provision 


TEXTS   OF   COMPENSATION   ACTS  1083 

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is  made  for  municipal  employes  injured  in  the  course  of 
employment,  such  employes  shall  not  be  entitled  to  the 
benefits  of  this  act  and  shall  not  be  included  in  the  pay  roll 
of  the  municipality  under  this  act. 

INTERSTATE  COMMERCE 

Sec.  18.  The  provisions  of  this  act  shall  apply  to  employers 
and  workmen  engaged  in  intrastate  and  also  in  interstate 
or  foreign  commerce,  for  whom  a  rule  of  liability  or  method 
of  compensation  has  been  or  may  be  established  by  the 
Congress  of  the  United  States,  only  to  the  extent  that  their 
mutual  connection  with  intrastate  work  may  and  shall 
be  clearly  separable  and  distinguishable  from  interstate  or 
foreign  commerce,  except  that  any  such  employer  and  any 
of  his  workmen  working  only  in  this  State  may,  with  the 
approval  of  the  department,  and  so  far  as  not  forbidden 
by  any  act  of  Congress,  voluntarily  accept  the  provisions 
of  this  act  by  filing  written  acceptances  with  the  department. 
Such  acceptances,  when  filed  with  and  approved  by  the 
department,  shall  subject  the  acceptors  irrevocably  to  the 
provisions  of  this  act  to  all  intents  and  purposes  as  if  they 
had  been  originally  included  in  its  terms.  Payment  of 
premium  shall  be  on  the  basis  of  the  pay  roll  of  the  workmen 
who  accept  as  aforesaid. 

elective  adoption  of  act 

Sec.  19.  Any  employer  and  his  employes  engaged  in 
works  not  extra  hazardous  may,  by  their  joint  election,  filed 
with  the  department,  accept  the  provisions  of  this  act,  and 
such  acceptances,  when  approved  by  the  department,  shall 
subject  them  irrevocably  to  the  provisions  of  this  act  to  all 
intents  and  purposes  as  if  they  had  been  originally  included 
in  its  terms.  Ninety  per  cent  of  the  minimum  rate  specified 
in  section  4  shall  be  applicable  to  such  case  until  otherwise 
provided  by  law. 


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COURT  REVIEW 

Sec.  20.  Any  employer,  workman,  beneficiary,  or  person 
feeling  aggrieved  at  any  decision  of  the  department  affecting 
his  interest  under  this  act  may  have  the  same  reviewed  by  a 
proceeding  for  that  purpose,  in  the  nature  of  an  appeal, 
initiated  in  the  superior  court  of  the  county  of  his  residence 
(except  as  otherwise  provided  in  subdivision  [1]  of  section 
numbered  5)  in  so  far  as  such  decision  rests  upon  questions 
of  fact,  or  of  the  proper  application  of  the  provisions  of  this 
act,  it  being  the  intent  that  matters  resting  in  the  discretion 
of  the  department  shall  not  be  subject  to  review.  The  pro- 
ceedings in  every  such  appeal  shall  be  informal  and  summary, 
but  full  opportunity  to  be  heard  shall  be  had  before  judgment 
is  pronounced.  No  such  appeal  shall  be  entertained  unless 
notice  of  appeal  shall  have  been  served  by  mail  or  personally 
upon  some  member  of  the  commission  within  twenty  days 
following  the  rendition  of  the  decision  appealed  from  and 
communication  thereof  to  the  person  affected  thereby.  No 
bond  shall  be  required,  except  that  an  appeal  by  the  employer 
from  a  decision  of  the  department  under  section  9  shall 
be  ineffectual  unless,  within  five  days  following  the  service 
of  notice  thereof,  a  bond,  with  surety  satisfactory  to  the  court, 
shall  be  filed,  conditioned  to  perform  the  judgment  of  the 
court.  Except  in  the  case  last  named  an  appeal  shall  not 
be  a  stay.  The  calling  of  a  jury  shall  rest  in  the  discretion 
of  the  court  except  that  in  cases  arising  under  sections  9,  15 
and  16  either  party  shall  be  entitled  to  a  jury  trial  upon 
demand.  It  shall  be  unlawful  for  any  attorney  engaged  in 
any  such  appeal  to  charge  or  receive  any  fee  therein  in  excess 
of  a  reasonable  fee,  to  be  fixed  by  the  court  in  the  case,  and, 
if  the  decision  of  the  department  shall  be  reversed  or  modified, 
such  fee  and  the  fees  of  medical  and  other  witnesses  and  the 
costs  shall  be  payable  out  of  the  administration  fund,  if 
the  accident  fund  is  affected  by  the  litigation.  In  other 
respects  the  practice  in  civil  cases  shall  apply.    Appeal  shall 


TEXTS   OF   COMPENSATION   ACTS  1085 

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lie  from  the  judgment  of  the  superior  court  as  in  other  civil 
cases.  The  attorney  general  shall  be  the  legal  adviser  of 
the  department  and  shall  represent  it  in  all  proceedings, 
whenever  so  requested  by  any  of  the  commissioners.  In  all 
court  proceedings  under  or  pursuant  to  this  act  the  decision 
of  the  department  shall  be  prima  fade  correct,  and  the 
burden  of  proof  shall  be  upon  the  party  attacking  the  same. 

CREATION  OF  DEPARTMENT 

Sec.  21.  The  administration  of  this  act  is  imposed  upon  a 
department,  to  be  known  as  the  Industrial  Insurance  De- 
partment, to  consist  of  three  commissioners  to  be  appointed 
by  the  governor,  One  of  them  shall  hold  office  for  the  first 
two  years,  another  for  the  first  four  years,  and  another  for 
the  first  six  years  following  the  passage  and  approval  of  this 
act.  Thereafter  the  term  shall  be  six  years.  Each  commis- 
sioner shall  hold  until  his  successor  shall  be  appointed  and  shall 
have  qualified.  A  decision  of  any  question  arising  under  this 
act  concurred  in  by  two  of  the  commissioners  shall  be  the 
decision  of  the  department.  The  governor  may  at  any  time 
remove  any  commissioner  from  office  in  his  discretion,  but 
within  ten  days  following  any  such  removal  the  governor 
shall  file  in  the  office  of  the  secretary  of  State  a  statement 
of  his  reasons  therefor.  The  commission  shall  select  one 
of  their  members  as  chairman.  The  main  office  of  the  com- 
mission shall  be  at  the  state  capitol,  but  branch  offices  may 
be  established  at  other  places  in  the  State.  Each  member 
of  the  commission  shall  have  power  to  issue  subpoenas 
requiring  the  attendance  of  witnesses  and  the  production 
of  books  and  documents. 

SALARY  OF  COMMISSIONERS 

Sec.  22.  The  salary  of  each  of  the  commissioners  shall 
be  thirty-six  hundred  dollars  per  annum,  and  he  shall  be 
allowed  his  actual  and  necessary  traveling  and  incidental 


1086    Bradbury's  workmen's  compensation  law 

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expenses;  and  any  assistant  to  the  commissioners  shall  be 
paid  for  each  full  day's  service  rendered  by  him,  his  actual 
and  necessary  traveling  expenses  and  such  compensation 
as  the  commission  may  deem  proper,  not  to  exceed  six  dollars 
per  day  to  an  auditor,  or  five  dollars  per  day  to  any  other 
assistant. 

DEPUTIES  and  assistants 

Sec.  23.  The  commissioners  may  appoint  a  sufficient 
number  of  auditors  and  assistants  to  aid  them  in  the  adminis- 
tration of  this  act,  at  an  expense  not  to  exceed  $5,000.00 
per  month.  They  employ  one  or  more  physicans  in  each 
county  for  the  purpose  of  official  medical  examinations, 
whose  compensation  shall  be  limited  to  five  dollars  for  each 
examination  and  report  therein.  They  may  procure  such 
record  books  as  they  may  deem  necessary  for  the  record  of 
the  financial  transactions  and  statistical  data  of  the  de- 
partment, and  the  necessary  documents,  forms  and  blanks. 
They  may  establish  and  require  all  employers  to  install  and 
maintain  an  uniform  form  of  pay  roll. 

CONDUCT,    MANAGEMENT   AND    SUPERVISION    OF   DEPARTMENT 

Sec.  24.  The  commission  shall,  in  accordance  with  the 
provisions  of  this  act : 

1.  Establish  and  promulgate  rules  governing  the  admin- 
istration of  this  act. 

2.  Ascertain  and  estatjlish  the  amounts  to  be  paid  into 
and  out  of  the  accident  fund. 

3.  Regulate  the  proof  of  accident  and  extent  thereof,  the 
proof  of  death  and  the  proof  of  relationship  and  the  extent 
of  dependency. 

4.  Supervise  the  medical,  surgical  and  hospital  treatment 
to  the  intent  that  same  may  be  in  all  cases  suitable  and  whole- 
some. 

5.  Issue  proper  receipts  for  moneys  received,  and  certificate 
for  benefits  accrued  and  accruing. 


TEXTS   OF   COMPENSATION   ACTS  1087 

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6.  Investigate  the  cause  of  all  serious  injuries  and  report 
to  the  governor  from  time  to  time  any  violations  or  laxity 
in  performance  of  protective  statutes  or  regulations  coming 
under  the  observation  of  the  department. 

7.  Compile  and  preserve  statistics  showing  the  number 
of  accidents  occurring  in  the  establishment  or  works  of  each 
employer,  the  liabilities  and  expenditures  of  the  accident 
fund  on  account  of,  and  the  premium  collected  from  the 
same,  and  hospital  charges  and  expenses. 

8.  Make  annual  reports  to .  the  governor  (one  of  them 
not  more  than  sixty  nor  less  than  thirty  days  prior  to  each 
regular  session  of  the  legislature)  of  the  workings  of  the 
department,  and  showing  the  financial  status  and  the  out- 
standing obligations  of  the  accident  fund,  and  the  statistics 
aforesaid. 

MEDICAL  WITNESS 

Sec.  25.  Upon  the  appeal  of  any  workman  from  any  de- 
cision of  the  department  affecting  the  extent  of  his  injuries 
or  the  progress  of  the  same,  the  court  may  appoint  not  to 
exceed  three  physicians  to  examine  the  physical  condition  of 
the  appellant,  who  shall  make  to  the  court  their  report 
thereon,  and  they  may  be  interrogated  before  the  court  by 
or  on  behalf  of  the  appellant  in  relation  to  the  same.  The 
fee  of  each  shall  be  fixed  by  the  court,  but  shall  not  exceed 
ten  dollars  per  day  each. 

DISBURSEMENT  OF  FUNDS 

Sec.  26.  Disbursement  out  of  the  funds  shall  be  made  only 
upon  warrants  drawn  by  the  State  auditor  upon  vouchers 
therefor  transmitted  to  him  by  the  department  and  audited 
by  him.  The  state  treasurer  shall  pay  every  warrant  out  of 
the  fund  upon  which  it  is  drawn.  If,  at  any  time,  there 
shall  not  be  sufficient  money  in  the  fund  on  which  any  such 
warrant  shall  have  been  drawn  wherewith  to  pay  the  same, 


1088    Bradbury's  workmen's  compensation  law 

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the  employer  on  account  of  whose  workman  it  was  that  the 
warrant  was  drawn  shall  pay  the  same,  and  he  shall  be  cred- 
ited upon  his  next  following  contribution  to  such  fund  the 
amount  so  paid  with  interest  thereon  at  the  legal  rate  from 
the  date  of  such  payment  to  the  date  such  next  following 
contribution  became  payable,  and  if  the  amount  of  the  credit 
shall  exceed  the  amount  of  the  contribution,  he  shall  have 
a  warrant  upon  the  same  fund  for  the  excess,  and  if  any  such 
warrant  shall  not  be  so  paid,  it  shall  remain,  nevertheless, 
payable  out  of  the  fund.  The  state  treasurer  shall  to  such 
extent  as  shall  appear  to  him  to  be  advisable  keep  the  moneys 
of  the  unsegregated  portion  of  the  accident  fund  invested 
at  interest  in  the  class  of  securities  provided  by  law  for  the 
investment  of  the  permanent  school  fund.  The  state  treas- 
urer shall  be  liable  on  his  official  bond  for  the  safe  custody 
of  the  moneys  and  securities  of  the  accident  fund,  but  all 
the  provisions  of  an  act  approved  February  21,  1907,  entitled 
"An  act  to  provide  for  state  depositories  and  to  regulate 
the  deposits  of  state  moneys  therein,"  shall  be  applied  to 
said  moneys  and  the  handling  thereof  by  the  state  treasurer. 

TEST  OF  invalidity  OF  ACT 

Sec.  27.  If  any  employer  shall  be  adjudicated  to  be  out- 
side the  lawful  scope  of  this  act,  the  act  shall  not  apply  to  him 
or  his  workman,  or  if  any  workman  shall  be  adjudicated  to  be 
outside  the  lawful  scope  of  this  act  because  of  remoteness 
of  his  work  from  the  hazard  of  his  employer's  work,  any  such 
adjudication  shall  not  impair  the  validity  of  this  act  in  other 
respects,  and  in  every  such  case  an  accounting  in  accordance 
with  the  justice  of  the  case  shall  be  had  of  moneys  received. 
If  the  provisions  of  section  4  of  this  act  for  the  creation  of 
the  accident  fund,  or  the  provisions  of  this  act  making  the 
compensation  to  the  workman  provided  in  it  exclusive  of 
any  other  remedy  on  the  part  of  the  workman  shall  be  held 
invalid  the  entire  act  shall  be  thereby  invalidated  except 


TEXTS   OF   COMPENSATION   ACTS  1089 

Washington 

the  provisions  of  section  31,  and  an  accounting  according 
to  the  justice  of  the  case  shall  be  had  of  moneys  received. 
In  other  respects  an  adjudication  of  invalidity  of  any  part 
of  this  act  shall  not  affect  the  validity  of  the  act  as  a  whole  or 
any  other  part  thereof. 

STATUTE  OF  LIMITATIONS  SAVED 

Sec.  28.  If  the  provisions  of  this  act  relative  to  compensa- 
tion for  injuries  to  or  death  of  workmen  become  invalid 
because  of  any  adjudication,  or  be  repealed,  the  period  in- 
tervening between  the  occurrence  of  an  injury  or  death,  not 
previously  compensated  for  under  this  act  by  lump  payment 
or  completed  monthly  payments,  and  such  repeal  or  the  ren- 
dition of  the  final  adjudication  of  the  invalidity  shall  not  be 
computed  as  a  part  of  the  time  limited  by  law  for  the  com- 
mencement of  any  action  relating  to  such  injury  or  death: 
Provided,  That  such  action  be  commenced  within  one  year 
after  such  repeal  or  adjudication;  but  in  any  such  action 
any  sum  paid  out  of  the  accident  fund  to  the  workman  on 
account  of  injury,  to  whom  the  action  is  prosecuted,  shall 
be  taken  into  account  or  disposed  of  as  follows:  If  the  de- 
fendant employer  shall  have  paid  without  delinquency  into 
the  accident  fund  the  payment  provided  by  section  4,  such 
sums  shall  be  credited  upon  the  recovery  as  payment  thereon, 
otherwise  the  sum  shall  not  be  so  credited  but  shall  be  de- 
ducted from  the  sum  collected  and  be  paid  into  the  said  fund 
from  which  they  had  been  previously  disbursed. 

APPROPRIATIONS 

Sec.  29.  There  is  hereby  appropriated  out  of  the  state 
treasury  the  sum  of  one  hundred  and  fifty  thousand  dollars, 
or  so  much  thereof  as  may  be  necessary,  to  be  known  as  the 
administration  fund,  out  of  which  the  salaries,  traveling 
and  office  expenses  of  the  department  shall  be  paid,  and  also 
all  other  expenses  of  the  administration  of  the  accident 
69 


1090    Bradbury's  workmen's  compensation  law 

Washington 

fund;  and  there  is  hereby  appropriated  out  of  the  accident 
fund  for  the  purpose  to  which  said  fund  is  apphcable  the 
sum  of  $1,500,000.00,  or  so  much  thereof  as  shall  be  necessary 
for  the  purposes  of  this  act. 

SAFEGUARD  REGULATIONS  PRESERVED 

Sec.  30.  Nothing  in  this  act  contained  shall  repeal  any 
existing  law  providing  for  the  installation  or  maintenance 
of  any  device,  means  or  method  for  the  prevention  of  accident 
in  extra  hazardous  work  or  for  a  penalty  or  punishment 
for  failure  to  install  or  maintain  any  such  protective  device, 
means  or  method,  but  section  8,  9,  and  10  of  the  act  approved 
March  6,  1905,  entitled:  "An  act  providing  for  the  pro- 
tection and  health  of  employes  in  factories,  mills  or  work- 
shops, where  machinery  is  used,  and  providing  for  suits  to 
recover  damages  sustained  by  the  violation  thereof,  and 
prescribing  a  punishment  for  the  violation  thereof  and 
repealing  an  act  entitled  *An  act  providing  for  the  protection 
of  employes  in  factories,  mills,  or  workshops  where  machin- 
ery is  used,  and  providing  for  the  punishment  of  the  violation 
thereof,  approved  March  6, 1903,'  and  repealing  all  other  acts 
or  parts  of  acts  in  conflict  herewith,"  are  hereby  repealed, 
except  as  to  any  cause  of  action  which  shall  have  accrued 
thereunder  prior  to  October  1,  1911. 

DISTRIBUTION  OF  FUNDS  IN  CASE  OF  REPEAL 

Sec.  31.  If  this  act  shall  be  hereafter  repealed,  all  moneys 
which  are  in  the  accident  fund  at  the  time  of  the  repeal 
shall  be  subject  to  such  disposition  as  may  be  provided  by 
the  legislature,  and  in  default  of  such  legislative  provision 
distribution  thereof  shall  be  in  accordance  with  the  justice 
of  the  matter,  due  regard  being  had  to  obligations  of  compen- 
sation incurred  and  existing. 

SAVING  CLAUSE 

Sec.  32.  This  act  shall  not  affect  any  action  pending  or 


TEXTS   OF   COMPENSATION   ACTS  1091 

Wisconsin 

cause  of  action  existing  on  the  30th  day  of  September, 
1911. 

Passed  the  House  February  23,  1911. 

Passed  the  Senate  March  7,  1911. 

Approved  by  the  Governor  March  14,  1911. 

WISCONSIN 

(L.  1911,  c.  50) 

An  act  to  create  sections  2394-1  to  2394-32  of  the  statutes 
(to  be  included  in  a  new  chapter  of  the  statutes  to  be 
numbered  chapter  110a),  relating  to  the  liability  of  em- 
ployers for  injuries  or  death  sustained  by  their  employes, 
providing  for  compensation  for  the  accidental  injury  or 
death  of  employes,  establishing  an  industrial  accident 
board, ^  defining  its  powers,  providing  for  a  review  of  its 
awards,  and  making  an  appropriation  to  carry  out  the 
provisions  of  this  act. 

ABROGATION  OF  DEFENSES 

Sec.  1.  There  are  added  to  the  statutes  thirty-two 
new  sections  to  read:  Section  2394-1.  In  any  action  to 
recover  damages  for  a  personal  injury  sustained  within  this 
State  by  an  employ^  while  engaged  in  the  line  of  his  duty 
as  such,  or  for  death  resulting  from  personal  injury  so  sus- 
tained, in  which  recovery  is  sought  upon  the  ground  of 
want  of  ordinary  care  of  the  employer,  or  of  any  officer, 
agent,  or  servant  of  the  employer,  it  shall  not  be  a  defense: 

1.  That  the  employ^  either  expressly  or  impliedly  assumed 
the  risk  of  the  hazard  complained  of. 

2.  When  such  employer  has  at  the  time  of  the  accident 
in  a  common  employment  four  or  more  employes,  that  the 
injury  or  death  was  caused  in  whole  or  in  part  by  the  want 
of  ordinary  care  of  a  fellow-servant. 

1  Superseded.    See  p.  000. 


1092    Bradbury's  workmen's  compensation  law 

Wisconsin 

Any  employer  who  has  elected  to  pay  compensation  as 
hereinafter  provided  shall  not  be  subject  to  the  provisions 
of  this  section  2394-1. 

Sec.  2394-2.  No  contract,  rule,  or  regulation,  shall  exempt 
the  employer  from  any  of  the  provisions  of  the  preceding 
section  of  this  act. 

APPLICATION  TO  RAILROADS 

Sec.  2394-3.  Except  as  regards  employes  working  in 
shops  or  offices  of  a  railroad  company,  who  are  within 
the  provisions  of  subsection  9  of  section  1816  of  the  statutes 
as  amended  by  chapter  254  of  the  laws  of  1907,  the  term 
"employer"  as  used  in  the  two  preceding  sections  of  this 
act  shall  not  include  any  railroad  company  as  defined  in 
subsection  7  of  said  section  1816  as  amended,  said  section  1816 
and  amendatory  acts  being  continued  in  force  unaffected, 
except  as  aforesaid,  by  the  preceding  sections  of  this  act. 

LIABILITY   FOR   COMPENSATION 

Sec.  2394-4.  Liability  for  the  compensation  hereinafter 
provided  for,  in  lieu  of  any  other  liability  whatsoever,  shall 
exist  against  an  employer  for  any  personal  injury  accidentally 
sustained  by  his  employ^,  and  for  his  death,  if  the  injury 
shall  proximately  cause  death,  in  those  cases  where  the 
following  conditions  of  compensation  concur: 

1.  Where,  at  the  time  of  the  accident,  both  the  employer 
and  employe  are  subject  to  the  provisions  of  this  act  accord- 
ing to  the  succeeding  sections  hereof, 

2.  Where,  at  the  time  of  the  accident,  the  employ^  is 
performing  service  growing  out  of  and  incidental  to  his 
employment. 

3.  Where  the  injury  is  proximately  caused  by  accident, 
and  is  not  caused  by  willful  misconduct. 

And  where  such  conditions  of  compensation  exist  for  any 
personal  injury  or  death,  the  right  to  recovery  of  such  com- 


TEXTS   OF   COMPENSATION   ACTS  1093 

Wisconsin 

pensation  pursuant  to  the  provisions  of  this  act,  and  acts 
amendatory  thereof,  shall  be  the  exclusive  remedy  against 
the  employer  for  such  injury  or  death;  in  all  other  cases  the 
liability  of  the  employer  shall  be  the  same  as  if  this  and  the 
succeeding  sections  of  this  act  had  not  been  passed,  but  shall 
be  subject  to  the  provisions  of  the  preceding  sections  of  this 
act. 

"employer"  defined 

Sec.  2394-5.  The  following  shall  constitute  employers 
subject  to  the  provisions  of  this  act  within  the  meaning  of 
the  preceding  section : 

1.  The  State,  and  each  county,  city,  town,  village,  and 
school  district  therein. 

2,  Every  person,  firm,  and  private  corporation  (including 
any  public  service  corporation),  who  has  any  person  in 
service  under  any  contract  of  hire,  express  or  implied,  oral 
or  written,  and  who,  at  or  prior  to  the  time  of  the  accident 
to  the  employ^  for  which  compensation  under  this  act  may 
be  claimed,  shall,  in  the  manner  provided  in  the  next  section, 
have  elected  to  become  subject  to  the  provisions  of  this  act, 
and  who  shall  not,  prior  to  such  accident,  have  effected  a 
withdrawal  of  such  election,  in  the  manner  provided  in  the 
next  section. 

ELECTION    BY    EMPLOYER 

Sec.  2394-6.  Such  election  on  the  part  of  the  employer 
shall  be  made  by  filing  with  the  industrial  accident  board, ^ 
hereinafter  provided  for,  a  written  statement  to  the  effect 
that  he  accepts  the  provisions  of  this  act,  the  filing  of  which 
statement  shall  operate,  within  the  meaning  of  section  2394-5 
of  this  act  to  subject  such  employer  to  the  provisions  of  this 
act  and  all  acts  amendatory  thereof  for  the  term  of  one 
year  from  the  date  of  the  filing  of  such  statement,  and  there- 

1  Superseded.    See  note  1,  p.  1102. 


1094    Bradbury's  workmen's  compensation  law 

Wisconsin 

after,  without  further  act  on  his  part,  for  successive  terms 
of  one  year  each,  unless  such  employer  shall,  at  least  sixty 
days  prior  to  the  expiration  of  such  first  or  any  succeeding 
year,  file  in  the  office  of  said  board  a  notice  in  writing  to  the 
effect  that  he  desires  to  withdraw  his  election  to  be  subject 
to  the  provisions  of  the  act. 

"employ^"  defined 

Sec.  2394-7.  The  term  "employ^"  as  used  in  section 
2394— i  of  this  act  shall  be  construed  to  mean: 

1.  Every  person  in  the  service  of  the  State,  or  of  any 
county,  city,  town,  village,  or  school  district  therein,  under 
any  appointment,  or  contract  of  hire,  express  or  implied, 
oral  or  written,  except  any  official  of  the  State,  or  of  any 
county,  city,  town,  village,  or  school  district  therein,  provided 
that  one,  employed  by  a  contractor,  who  has  contracted  with 
a  county,  city,  town,  village,  school  district,  or  the  State, 
through  its  representatives,  shall  not  be  considered  an 
employ^  of  the  State,  county,  city,  town,  village,  or  school 
district  which  made  the  contract. 

2.  Every  person  in  the  service  of  another  under  any  con- 
tract of  hire,  express  or  implied,  oral  or  written,  including 
aliens,  and  also  including  minors  who  are  legally  permitted 
to  work  under  the  laws  of  the  State  (who,  for  the  purposes 
of  the  next  section  of  this  act,  shall  be  considered  the  same 
and  shall  have  the  same  power  of  contracting  as  adult  em- 
ployes), but  not  including  any  person  whose  employment 
is  but  casual  or  is  not  in  the  usual  course  of  the  trade,  business, 
profession,  or  occupation  of  his  employer. 

election  by  employ6 

Sec.  2394-8.  Any  employ^  as  defined  in  subsection  1 
of  the  preceding  section  shall  be  subject  to  the  provisions 
of  this  act  and  any  act  amendatory  thereof.  Any  employ^ 
as  defined  in  subsection  2  of  the  preceding  section  shall  be 


TEXTS   OF   COMPENSATION   ACTS  1095 

Wisconsin 

deemed  to  have  accepted  and  shall,  within  the  meaning  of 
section  2394-4  of  this  act,  be  subject  to  the  provisions  of 
this  act  and  of  any  act  amendatory  thereof,  if,  at  the  time 
of  the  accident  upon  which  liability  is  claimed : 

1.  The  employer  charged  with  such  liability  is  subject  to 
the  provisions  of  this  act,  whether  the  employ^  has  actual 
notice  thereof  or  not;  and 

2.  Such  employe  shall  not,  at  the  time  of  entering  into 
his  contract  of  hire,  express  or  implied,  with  such  employer, 
have  given  to  his  employer  notice  in  writing  that  he  elects 
not  to  be  subject  to  the  provisions  of  this  act;  or,  in  the  event 
that  such  contract  of  hire  was  made  in  advance  of  such 
employer  becoming  subject  to  the  provisions  of  this  act,  such 
employe  shall  have  given  to  his  employer  notice  in  writing 
that  he  elects  to  be  subject  to  such  provisions,  or  without 
giving  either  of  such  notices,  shall  have  remained  in  the 
service  of  such  employer  for  thirty  days  after  the  employer 
has  filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act. 

SCALE    OF    COMPENSATION 

Sec.  2394-9.  Where  liability  for  compensation  under 
this  act  exists,  the  same  shall  be  as  provided  in  the  following 
schedule : 

1.  Such  medical  and  surgical  treatment,  medicines,  med- 
ical and  surgical  supplies,  crutches,  and  apparatus,  as  may 
be  reasonably  required  at  the  time  of  the  injury  and  there- 
after during  the  disability,  but  not  exceeding  ninety  days, 
to  cure  and  relieve  from  the  effects  of  the  injury,  the  same 
to  be  provided  by  the  employer;  and  in  case  of  his  neglect 
or  refusal  seasonably  to  do  so,  the  employer  to  be  liable 
for  the  reasonable  expense  incurred  by  or  on  behalf  of  the 
employe  in  providing  the  same. 

2.  If  the  accident  causes  disability,  an  indemnity  which 
shall  be  payable  as  wages  on  the  eighth  day  after  the  injured 


1096    Bradbury's  workmen's  compensation  law 

Wisconsin 

employ 6  leaves  work  as  the  result  of  the  injury,  and  weekly 
thereafter,   which   weekly   indemnity  shall   be  as  follows: 

(a)  If  the  accident  causes  total  disability,  sixty-five  per 
cent  of  the  average  weekly  earnings  during  the  period  of 
such  total  disability,  provided  that,  if  the  disability  is  such 
as  not  only  to  render  the  injured  employe  entirely  incapable 
of  work,  but  also  so  helpless  as  to  require  the  assistance  of 
a  nurse,  the  weekly  indemnity  during  the  period  of  such 
assistance  after  the  first  ninety  days  shall  be  increased  to  one 
hundred  per  cent  of  the  average  weekly  earnings. 

(b)  If  the  accident  causes  partial  disability,  sixty-five 
per  cent  of  the  weekly  loss  in  wages  during  the  period  of 
such  partial  disability. 

(c)  If  the  disability  caused  by  the  accident  is  at  times 
total  and  at  times  partial,  the  weekly  indemnity  during  the 
periods  of  each  such  total  or  partial  disability  shall  be  in 
accordance  with  said  subdivision  (a)  and  (b)  respectively. 

(d)  Said,  subdivisions  (a),  (b),  and  (c)  shall  be  subject 
to  the  following  limitations : 

Aggregate  disability  indemnity  for  injury  to  a  single  em- 
ploy6  caused  by  a  single  accident  shall  not  exceed  four  times 
the  average  annual  earnings  of  such  employ^. 

The  aggregate  disability  period  shall  not,  in  any  event, 
extend  beyond  fifteen  years  from  the  date  of  the  accident. 

The  weekly  indemnity  due  on  the  eighth  day  after  the 
employ^  leaves  work  as  the  result  of  the  injury  may  be 
withheld  until  the  twenty-ninth  day  after  he  so  leaves  work; 
if  recovery  from  the  disability  shall  then  have  occurred, 
such  first  weekly  indemnity  shall  not  be  recoverable;  if  the 
disability  still  continues,  it  shall  be  added  to  the  weekly 
indemnity  due  on  said  twenty-ninth  day  and  be  paid  there- 
with. 

If  the  period  of  disability  does  not  last  more  than  one  week 
from  the  day  the  employ^  leaves  work  as  the  result  of  the 
injury  no  indemnity  whatever  shall  be  recoverable. 


TEXTS   OF   COMPENSATION   ACTS  1097 

Wisconsin 

3.  The  death  of  the  injured  employ^  shall  not  affect  the 
obligation  of  the  employer  under  subsections  1  and  2  of  this 
section,  so  far  as  his  liability  shall  have  become  payable 
at  the  time  of  death;  but  the  death  shall  be  deemed  the 
termination  of  disability,  and  the  employer  shall  thereupon 
be  liable  for  the  following  death  benefits  in  lieu  of  any  further 
disability  indemnity: 

(a)  In  case  the  deceased  employ^  leaves  a  person  or 
persons  wholly  dependent  on  him  for  support,  the  death 
benefit  shall  be  a  sum  sufficient,  when  added  to  the  indemnity 
which  shall  at  the  time  of  death  have  been  paid  or  become 
payable  under  the  provisions  of  subsection  2  of  this  section, 
to  make  the  total  compensation  for  the  injury  and  death 
(exclusive  of  the  benefit  provided  for  in  subsection  1),  equal 
to  four  times  his  average  annual  earnings;  the  same  to  be 
payable  unless  and  until  the  board  shall  direct  payment  in 
gross,  in  weekly  installments  corresponding  in  amount  to 
the  weekly  earnings  of  the  employ^. 

(b)  In  case  the  deceased  employ^  leaves  no  one  wholly 
dependent  on  him  for  support,  but  one  or  more  persons 
partially  dependent  therefor,  the  death  benefit  shall  be  such 
percentage  of  four  times  such  average  annual  earnings  of 
the  employ^  as  the  average  annual  amount  devoted  by  the 
deceased  to  the  support  of  the  person  or  persons  so  partially 
dependent  on  him  for  support  bears  to  such  average  annual 
earnings,  the  same  to  be  payable,  unless  and  until  the  board 
shall  direct  payment  in  gross,  in  weekly  installments,  corre- 
sponding in  amount  to  the  weekly  earnings  of  the  employe; 
provided  that  the  total  compensation  for  the  injury  and 
death  (exclusive  of  the  benefit  provided  for  in  said  subsec- 
tion 1)  shall  not  exceed  four  times  such  average  annual 
earnings. 

(c)  Liability  for  the  death  benefits  provided  for  in  subdi- 
visions (a)  and  (b)  respectively  shall  only  exist  where  the  acci- 
dent is  the  proximate  cause  of  death;  provided  that,  if  the 


1098    Bradbury's  workmen's  compensation  law 

Wisconsin 

accident  proximately  causes  permanent  total  disability,  and 
death  ensues  from  some  other  cause  before  disability  indemnity 
ceases,  the  death  benefit  shall  be  the  same  as  though  the 
accident  had  caused  death;  and  provided  further  that,  if 
the  accident  proximately  causes  permanent  partial  disability 
and  death  ensues  from  some  other  cause  before  disability 
indemnity  ceases,  liability  shall  exist  for  such  percentage 
of  the  death  benefits  provided  for  in  said  subdivision  (a)  or  (b) 
(as  the  case  may  be),  as  shall  fairly  represent  the  propor- 
tionate extent  of  the  impairment  of  earning  capacity  caused 
by  such  permanent  partial  disabihty  in  the  employment 
in  which  the  employ 6  was  working  at  the  time  of  the  accident. 
(d)  If  the  deceased  employe  leaves  no  person  dependent 
upon  him  for  support,  and  the  accident  proximately  causes 
death,  the  death  benefit  shall  consist  of  the  reasonable  expense 
of  his  burial,  not  exceeding  $100. 

METHOD  OF  COMPUTATION 

Sec.  2394 — 10.  1.  The  weekly  earnings  referred  to  in 
section  2394 — 9  shall  be  one  fifty-second  of  the  average 
annual  earnings  of  the  employ^;  average  annual  earnings 
shall  not  be  taken  at  less  than  $375,  nor  more  than  $750, 
and  between  said  limits  shall  be  arrived  at  as  follows : 

(a)  If  the  injured  employe  has  worked  in  the  employment 
in  which  he  was  working  at  the  time  of  the  accident,  whether 
for  the  same  employer  or  not,  during  substantially  the  whole 
of  the  year  immediately  preceding  his  injury,  his  average 
annual  earnings  shall  consist  of  three  hundred  times  the 
average  daily  wage  or  salary  which  he  has  earned  in  such 
employment  during  the  days  when  so  employed. 

(b)  If  the  injured  employe  has  not  so  worked  in  such 
employment  during  substantially  the  whole  of  such  imme- 
diately preceding  year,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage  or 
salary  which  an  employe  of  the  same  class  working  sub- 


TEXTS   OF   COMPENSATION  ACTS  1099 

Wisconsin 

stantially  the  whole  of  such  immediately  preceding  year  in 
the  same  or  in  similar  employment  in  the  same  or  a  neighbor- 
ing place  shall  have  earned  in  such  employment  during  the 
days  when  so  employed. 

(c)  In  cases  where  the  foregoing  methods  of  arriving  at  the 
average  annual  earnings  of  the  injured  employ^  cannot 
reasonably  and  fairly  be  applied,  such  annual  earnings  shall 
be  taken  at  such  sum  as,  having  regard  to  the  previous  earn- 
ings of  the  injured  employ^,  and  of  other  employes  of  the 
same  or  most  similar  class,  working  in  the  same  or  most  similar 
employment,  in  the  same  or  a  neighboring  locality,  shall 
reasonably  represent  the  annual  earning  capacity  of  the 
injured  employ^  at  the  time  of  the  accident  in  the  employ- 
ment in  which  he  was  working  at  such  time. 

(d)  The  fact  that  an  employ^  has  suffered  a  previous 
disability,  or  received  compensation  therefor,  shall  not 
preclude  compensation  for  a  later  injury,  or  for  death,  but 
in  determining  compensation  for  the  later  injury,  or  death, 
his  average  annual  earnings  shall  be  such  sum  as  will  reason- 
ably represent  his  annual  earning  capacity  at  the  time  of 
the  later  injury,  in  the  employment  in  which  he  was  working 
at  such  time,  and  shall  be  arrived  at  according  to,  and  subject 
to  the  limitations  of,  the  previous  provisions  of  this  section. 

2.  The  weekly  loss  in  wages  referred  to  in  section  2394-9 
shall  consist  of  such  percentage  of  the  average  weekly  earnings 
of  the  injured  employ^,  computed  according  to  the  provision 
of  this  section,  as  shall  fairly  represent  the  proportionate 
extent  of  the  impairment  of  his  earning  capacity  in  the  em- 
ployment in  which  he  was  working  at  the  time  of  the  accident, 
the  same  to  be  fixed  as  of  the  time  of  the  accident,  but  to 
be  determined  in  view  of  the  nature  and  extent  of  the 
injury. 

3.  The  following  shall  be  conclusively  presumed  to  be 
solely  and  wholly  dependent  for  support  upon  a  deceased 
employ^: 


1100    Bradbury's  workmen's  compensation  law 

Wisconsin 

(a)  A  wife  upon  a  husband  with  whom  she  is  living  at  the 
time  of  his  death. 

(b)  A  husband  upon  a  wife  with  whom  he  is  Uving  at  the 
time  of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or 
over  said  age,  but  physically  or  mentally  incapacitated  from 
earning),  upon  the  parent  with  whom  he  or  they  are  living 
at  the  time  of  the  death  of  the  parent,  there  being  no  surviving 
dependent  parent.  In  case  there  is  more  than  one  child  thus 
dependent,  the  death  benefit  shall  be  divided  equally  among 
them. 

In  all  other  cases  questions  of  entire  or  partial  dependency 
shall  be  determined  in  accordance  with  the  fact,  as  the  fact 
may  be  at  the  time  of  the  death  of  the  employ^;  and  in 
such  other  cases,  if  there  is  more  than  one  person  wholly 
dependent,  the  death  benefit  shall  be  divided  equally  among 
them,  and  persons  partially  dependent,  if  any,  shall  receive 
no  part  thereof;  and  if  there  is  more  than  one  person  partially 
dependent,  the  death  benefit  shall  be  divided  among  them 
according  to  the  relative  extent  of  their  dependency. 

4.  No  person  shall  be  considered  a  dependent  unless  a 
member  of  the  family  of  the  deceased  employe,  or  bears 
to  him  the  relation  of  husband  or  widow,  or  lineal  descendant, 
or  ancestor,  or  brother,  or  sister. 

5.  Questions  as  to  who  constitute  dependents  and  the 
extent  of  their  dependency  shall  be  determined  as  of  the  date 
of  the  accident  to  the  employe,  and  their  right  to  any  death 
benefit  shall  become  fixed  as  of  such  time,  irrespective  of 
any  subsequent  change  in  conditions;  and  the  death  benefit 
shall  be  directly  recoverable  by  and  payable  to  the  dependent 
or  dependents  entitled  thereto  or  their  legal  guardians  or 
trustees;  provided  that  in  case  of  the  death  of  a  dependent 
whose  right  to  a  death  benefit  has  thus  become  fixed,  so 
much  of  the  same  as  is  then  unpaid  shall  be  recoverable  by 
and  payable  to  his  personal  representative  in  gross.     No 


TEXTS   OF   COMPENSATION   ACTS  1101 

Wisconsin 

person  shall  be  excluded  as  a  dependent  who  is  a  non-resident 
alien. 

6.  No  dependent  of  an  injured  employ^  shall  be  deemed, 
during  the  life  of  such  employe,  a  party  in  interest  to  any 
proceeding  by  him  for  the  enforcement  or  collection  of  any 
claim  for  compensation,  nor  as  respects  the  compromise 
thereof  by  such  employ^. 

NOTICE     OF     INJURY 

Sec.  2394-11.  No  claim  to  recover  compensation  under 
this  act  shall  be  maintained  unless,  within  thirty  days  after 
the  occurrence  of  the  accident  which  is  claimed  to  have  caused 
the  injury  or  death,  notice  in  writing,  stating  the  name  and 
address  of  the  person  injured,  the  time  and  place  where  the 
accident  occurred,  and  the  nature  of  the  injury,  and  signed 
by  the  person  injured  or  by  some  one  on  his  behalf,  or  in 
case  of  his  death,  by  a  dependent  or  some  one  on  his  behalf, 
shall  be  served  upon  the  employer,  either  by  delivering 
to  and  leaving  with  him  a  copy  of  such  notice,  or  by  mailing 
to  him  by  registered  mail  a  copy  thereof  in  a  sealed  and  post- 
paid envelope  addressed  to  him  at  last  known  place  of  business 
or  residence.  Such  mailing  shall  constitute  completed  service. 
Provided,  however,  that  any  payment  of  compensation  under 
this  act,  in  whole  or  in  part,  made  by  the  employer  before 
the  expiration  of  said  thirty  days,  shall  be  equivalent  to  the 
notice  herein  required;  and  provided  further,  that  the 
failure  to  give  any  such  notice,  or  any  defect  or  inaccuracy 
therein,  shall  not  be  a  bar  to  recovery  under  this  act  if  it 
is  found  as  a  fact  in  the  proceedings  for  collection  of  the 
claim  that  there  was  no  intention  to  mislead  the  employer, 
and  that  he  was  not  in  fact  misled  thereby;  and  provided 
further,  that  if  no  such  notice  is  given  and  no  payment  of 
compensation  made,  within  two  years  from  the  date  of  the 
accident,  the  right  to  compensation  therefor  shall  be  wholly 
barred. 


1102    Bradbury's  workmen's  compensation  law 

Wisconsin 


EXAMINATION     BY     PHYSICIAN 

Sec.  2394-12.  Wherever  in  case  of  injury  the  right  to 
compensation  under  this  act  would  exist  in  favor  of  any 
employe,  he  shall,  upon  the  written  request  of  his  employer, 
submit  from  time  to  time  to  examination  by  a  regular  prac- 
ticing physician,  who  shall  be  provided  and  paid  for  by  the 
employer,  and  shall  likewise  submit  to  examination  from  time 
to  time  by  regular  physician  selected  by  said  industrial  ac- 
cident board,  or  a  member  or  examiner  thereof.  The  employ^ 
shall  be  entitled  to  have  a  physician,  provided  and  paid  for 
by  himself,  present  at  any  such  examination.  So  long  as 
the  employ^,  after  such  written  request  of  the  employer, 
shall  refuse  to  submit  to  such  examination,  or  shall  in  any 
way  obstruct  the  same,  his  right  to  begin  or  maintain  any 
proceeding  for  the  collection  of  compensation  shall  be  sus- 
pended; and  if  he  shall  refuse  to  submit  to  such  examination 
after  direction  by  the  board,  or  any  member  or  examiner 
thereof,  or  shall  in  any  way  obstruct  the  same,  his  right  to 
the  weekly  indemnity  which  shall  accrue  and  become  payable 
during  the  period  of  such  refusal  or  obstruction,  shall  be 
barred.  Any  physician  who  shall  make  or  be  present  at  any 
such  examination  may  be  required  to  testify  as  to  the  results 
thereof. 

CREATION    OF    BOARD  ^ 

Sec.  2394-13.  There  is  hereby  created  a  board  which 
shall  be  known  as  the  industrial  accident  board.  ^  The  com- 
missioner of  labor  and  industrial  statistics  shall  be  ex-officio 
a  member  of  such  board.  He  may,  however,  authorize 
the  deputy  commissioner  to  act  in  his  place.  Within  thirty 
days  after  the  passage  of  this  act,  the  governor,  by  and  with 
the  advice  and  consent  of  the  senate,  shall  appoint  a  member 

1  The  Industrial  Accident  Board  has  been  superseded  by  the 
Industrial  Commission  of  Wisconsin.  See  sections  2394-42,  Chap- 
ter 485,  Laws  of  Wisconsin  for  1911. 


TEXTS   OF   COMPENSATION  ACTS  1103 

Wisconsin 

who  shall  serve  two  years,  and  another  who  shall  serve  four 
years.  Thereafter  such  two  members  shall  be  appointed  and 
confirmed  for  terms  of  four  years  each.  Vacancies  shall 
be  filled  in  the  same  manner  for  the  unexpired  term.  Each 
member  of  the  board,  before  entering  upon  the  duties  of  his 
ofl&ce,  shall  take  the  oath  prescribed  by  the  constitution. 
A  majority  of  the  board  shall  constitute  a  quorum  for  the 
exercise  of  any  of  the  powers  or  authority  conferred  by  this 
act,  and  an  award  by  a  majority  shall  be  valid.  In  case  of  a 
vacancy,  the  remaining  two  members  of  the  board  shall 
exercise  all  the  powers  and  authority  of  the  board  until  such 
vacancy  is  filled.  Each  member  of  the  board,  including  the 
said  commissioner,  shall  receive  an  annual  salary  of  $5,000. 
This  salary  shall,  as  to  the  commissioner  of  labor  and  in- 
dustrial statistics,  be  in  full  for  his  services  as  such  commis- 
sioner of  labor  and  industrial  statistics. 

ORGANIZATION  OF  BOARD* 

Sec.  2394-14.  The  board  shall  organize  by  choosing  one 
of  its  members  as  chairman.  Subject  to  the  provisions  of 
this  act,  it  may  adopt  its  own  rules  of  procedure  and  may 
change  the  same  from  time  to  time  in  its  discretion.  The 
board,  when  it  shall  deem  it  necessary  to  expedite  its  business, 
may  from  time  to  time  employ  one  or  more  expert  examiners 
for  such  length  of  time  as  may  be  required,  such  examiners 
to  be  exempt  from  the  operation  of  chapter  363  of  the  laws 
of  1905,  and  amendatory  acts.  It  may  also  appoint  a  secre- 
tary, who  shall  be  similarly  exempt,  and  such  clerical  help 
as  it  may  deem  necessary.  It  shall  fix  the  compensation  of 
all  assistants  so  appointed.  It  shall  provide  itself  with  a 
seal  for  the  authentication  of  its  orders,  awards,  and  pro- 
ceedings, upon  which  shall  be  inscribed  the  words  "Industrial 
Accident  Board — Wisconsin — Seal."  It  shall  keep  its  office 
at  the  capitol,  and  shall  be  provided  by  the  superintendent 

1  Superseded.    See  note  1,  page  1102. 


1104    Bradbury's  workmen's  compensation  law 

Wisconsin 

of  public  property  with  a  suitable  room  or  rooms,  necessary 
office  furniture,  stationery,  and  other  supplies.  The  members 
of  the  board  and  its  assistants  shall  be  entitled  to  receive 
from  the  State  their  actual  and  necessary  expenses  while 
traveling  on  the  business  of  the  board;  but  such  expenses 
shall  be  sworn  to  by  the  person  who  incurred  the  same,  and 
be  approved  by  the  chairman  of  the  board,  before  payment 
is  made.  All  salaries  and  expenses  authorized  by  this  act 
shall  be  audited  and  paid  out  of  the  general  funds  of  the 
State,  the  same  as  other  general  expenses  are  audited  and 
paid. 

SUBMISSION    OF    DISPUTES 

Sec.  2394-15.  Any  dispute  or  controversy  concerning 
compensation  under  this  act,  including  any  in  which  the 
State  may  be  a  party,  shall  be  submitted  to  said  industrial 
accident  board  in  the  manner  and  with  the  effect  provided 
in  this  act.  Every  compromise  of  any  claim  for  compensation 
under  this  act  shall  be  subject  to  be  reviewed  by,  and  set  aside, 
modified,  or  confirmed  by  the  board  upon  application  made 
within  one  year  from  the  time  of  such  compromise. 

NOTICE  OF  HEARING 

Sec.  2394-16.  Upon  the  filing  with  the  board  by  any 
party  in  interest  of  an  application  in  writing  stating  the 
general  nature  of  any  claim  as  to  which  any  dispute  or  con- 
troversy may  have  arisen,  it  shall  fix  a  time  for  the  hearing 
thereof,  which  shall  not  be  more  than  forty  days  after  the 
filing  of  such  application.  The  board  shall  cause  notice  of 
such  hearing,  embracing  a  general  statement  of  such  claim, 
to  be  given  to  each  party  interested,  by  service  of  such  notice 
on  him  personally  or  by  mailing  a  copy  thereof  to  him  at 
his  last  known  postoffice  address  at  least  ten  days  before 
such  hearing.  Such  hearing  may  be  adjourned  from  time 
to  time  in  the  discretion  of  the  board  and  hearings  may  be 


TEXTS   OF   COMPENSATION   ACTS  1105 

Wisconsin 

held  at  such  places  as  the  board  shall  designate.  Either 
party  shall  have  the  right  to  be  present  at  any  hearing,  in 
person  or  by  attorney,  or  any  other  agent,  and  to  present 
such  testimony  as  may  be  pertinent  to  the  controversy 
before  the  board;  but  the  board  may,  with  or  without  notice 
to  either  party,  cause  testimony  to  be  taken,  or  an  inspection 
of  the  premises  where  the  injury  occurred  to  be  had,  or  the 
time  books  and  pay  roll  of  the  employer  to  be  examined  by 
any  member  of  the  board  or  any  examiner  appointed  by  it, 
and  may  from  time  to  time  direct  any  employ^  claiming 
compensation  to  be  examined  by  a  regular  physician;  the 
testimony  so  taken,  and  the  results  of  any  such  inspection 
or  examination,  to  be  reported  to  the  board  for  its  considera- 
tion upon  final  hearing.  The  board,  or  any  member  thereof, 
or  any  examiner  appointed  thereby,  shall  have  power  and 
authority  to  issue  subpoenas,  to  compel  the  attendance  of 
witnesses  or  parties,  and  the  production  of  books,  papers, 
or  records,  and  to  administer  oaths.  Obedience  to  such 
subpoenas  shall  be  enforced  by  the  circuit  court  of  any  coimty. 

FINDINGS  AND  AWARDS 

Sec.  2394-17.  After  final  hearing  by  said  board,  it  shall 
make  and  file  (1)  its  findings  upon  all  facts  involved  in  the 
controversy,  and  (2)  its  award,  which  shall  state  its  determina- 
tion as  to  the  rights  of  the  parties.  Pending  the  hearing  and 
determination  of  any  controversy  before  it,  the  board  shall 
have  power  to  order  the  payment  of  such,  or  any  part,  of 
the  compensation,  which  is  or  may  fall  due,  as  to  which  the 
party  from  whom  the  same  is  claimed  does  not  deny  liability 
in  good  faith  within  ten  days  after  the  giving  of  notice  of 
hearing  provided  for  in  the  preceding  section;  and  if  the 
same  shall  not  be  paid  as  required  by  such  order,  the  facts 
with  respect  to  the  liability  therefor,  and  the  determination 
of  the  board  as  to  the  rights  of  the  parties,  shall  be  embraced 
in,  and  constitute  a  part  of,  its  findings  and  awards;  and  the 
70 


1106    Bradbury's  workmen's  compensation  law 

Wisconsin 

board  shall  have  the  power  to  include  in  its  award,  as  a  pen- 
alty for  noncompliance  with  any  such  order,  not  exceeding 
twenty-five  per  cent  of  each  amount  which  shall  not  have 
been  paid  as  directed  thereby. 

FILING  OF  JUDGMENT 

Sec.  2394-18.  Either  party  may  present  a  certified  copy 
of  the  award  to  the  circuit  court  for  any  county,  whereupon 
said  court  shall,  without  notice,  render  a  judgment  in  accord- 
ance therewith;  which  judgment,  until  and  unless  set  aside 
as  hereinafter  provided,  shall  have  the  same  effect  as  though 
duly  rendered  in  an  action  duly  tried  and  determined  by 
said  court,  and  shall,  with  like  effect,  be  entered  and  docketed. 

REVIEW  BX  COURT 

Sec.  2394-19.  The  findings  of  fact  made  by  the  board 
acting  within  its  powers  shall,  in  the  absence  of  fraud,  be 
conclusive;  and  the  award,  whether  judgment  has  been 
rendered  thereon  or  not,  shall  be  subject  to  review  only  in 
the  manner  and  upon  the  grounds  following:  Within  twenty 
days  from  the  date  of  the  award,  any  party  aggrieved  thereby 
may  commence,  in  the  circuit  court  for  Dane  county,  an 
action  against  the  board  for  the  review  of  such  award,  in 
which  action  the  adverse  party  shall  also  be  made  defendant. 
In  such  action  a  complaint,  which  shall  also  state  the  grounds 
upon  which  a  review  is  sought,  shall  be  served  with  the  sum- 
mons. Service  upon  the  secretary  of  the  board,  or  any  mem- 
ber of  the  board,  shall  be  deemed  completed  service.  The 
board  shall  serve  its  answer  within  twenty  days  after  the 
service  of  the  complaint,  and,  within  the  Uke  time,  such 
adverse  party  shall,  if  he  so  desires,  serve  his  answer  to  said 
complaint.  With  its  answer,  the  board  shall  make  return 
to  said  court  of  all  documents  and  papers  on  file  in  the  matter, 
and  of  all  testimony  which  may  have  been  taken  therein, 
and  of  its  findings  and  award.     Said  action  thereupon  be 


TEXTS   OF   COMPENSATION   ACTS  1107 

Wisconsin 

brought  on  for  hearing  before  said  court  upon  such  record 
by  either  party  on  ten  days'  notice  to  the  other;  subject, 
however,  to  the  provisions  of  law  for  a  change  of  the  place 
of  trial  or  the  calling  in  of  another  judge.  Upon  such  hearing, 
the  court  may  confirm  or  set  aside  such  award;  and  any 
judgment  which  may  theretofore  have  been  rendered  thereon; 
but  the  same  shall  be  set  aside  only  upon  the  following 
grounds : 

1.  That  the  board  acted  without  or  in  excess  of  its 
powers. 

2.  That  the  award  was  procured  by  fraud. 

3.  That  the  findings  of  fact  by  the  board  do  not  support 
the  award. 

REMANDING   OF   RECORD 

Sec.  2394-20.  Upon  the  setting  aside  of  any  award  the 
court  may  recommit  the  controversy  and  remand  the  record 
in  the  case  to  the  board,  for  further  hearing  or  proceedings; 
or  it  may  enter  the  proper  judgment  upon  the  findings,  as 
the  nature  of  the  case  shall  demand.  An  abstract  of  the 
judgment  entered  by  the  trial  court  upon  the  review  of  any 
award  shall  be  made  by  the  clerk  thereof  upon  the  docket 
entry  of  any  judgment  which  may  theretofore  have  been 
rendered  upon  such  award,  and  transcripts  of  such  abstract 
may  thereupon  be  obtained  for  like  entry  upon  the  dockets 
of  the  courts  of  other  counties. 

APPEAL  FROM  AWARD 

Sec.  2394-21.  Said  board,  or  any  party  aggrieved  by  a 
judgment  entered  upon  the  review  of  any  award,  may  appeal 
therefrom  within  the  time  and  in  the  manner  provided  for  an 
appeal  from  the  orders  of  the  circuit  court;  but  all  such  appeal 
shall  be  placed  on  the  calendar  of  the  supreme  court  and 
brought  to  a  hearing  in  the  same  manner  as  state  causes  on 
such  calendar. 


1108    Bradbury's  workmen's  compensation  law 

Wisconsin 


FEES    AND    COSTS 

Sec.  2394-22.  No  fees  shall  be  charged  by  the  clerk  of 
any  court  for  the  performance  of  any  official  service  required 
by  this  act,  except  for  the  docketing  of  judgments  and  for 
certified  copies  of  transcripts  thereof.  In  proceedings  to 
review  an  award,  costs  as  between  the  parties  shall  be  allowed 
or  not  in  the  discretion  of  the  court,  but  no  costs  shall  be 
taxed  against  said  board.  In  any  action  for  the  review  of 
an  award,  and  upon  any  appeal  therein  to  the  supreme  court, 
it  shall  be  the  duty  of  the  attorney  general,  personally,  or 
by  an  assistant,  to  appear  on  behalf  of  the  board,  whether  any 
other  party  defendant  shall  have  appeared  or  be  represented 
in  the  action  or  not.  Unless  previously  authorized  by  the 
board,  no  lien  shall  be  allowed,  nor  any  contract  be  enforce- 
able, for  any  contingent  attorneys'  fee  for  the  enforcement 
or  collection  of  any  claim  for  compensation  where  such  con- 
tingent fee,  inclusive  of  all  taxable  attorneys'  fees  paid  or 
agreed  to  be  paid  for  the  enforcement  or  collection  of  such 
claim,  exceeds  ten  per  cent  of  the  amount  at  which  such 
claim  shall  be  compromised,  or  of  the  amount  awarded, 
adjudged,  or  collected. 

ASSIGNMENT  OF  CLAIM 

Sec.  2394-23.  No  claim  for  compensation  under  this  act 
shall  be  assignable  before  payment,  but  this  provision  shall 
not  affect  the  survival  thereof;  nor  shall  any  claim  for  com- 
pensation, or  compensation  awarded,  adjudged,  or  paid, 
be  subject  to  be  taken  for  the  debts  of  the  party  entitled 
thereto. 

PREFERENCE    OF    CLAIM 

Sec.  2394-24.  The  whole  claim  for  compensation  for  the 
injury  or  death  of  any  employ 6  or  any  award  or  judgment 
thereon,  shall  be  entitled  to  a  preference  over  the  unsecured 
debts  of  the  employer  hereafter  contracted,  but  this  section 


TEXTS  OF  COMPENSATION  ACTS  1109 


Wisconsin 


shall  not  impair  the  lien  of  any  judgment  entered  upon  any 
award, 

THIRD    PARTY    LIABILITY 

Sec.  2394-25.  The  making  of  a  lawful  claim  against  an 
employer  for  compensation  under  this  act  for  the  injury  or 
death  of  his  employe  shall  operate  as  an  assignment  of  any 
cause  of  action  in  tort  which  the  employ^  or  his  personal 
representative  may  have  against  any  other  party  for  such 
injury  or  death;  and  such  employer  may  enforce  in  his  own 
name  the  liability  of  such  other  party. 

INSURANCE   PROVISIONS 

Sec.  2394-26.  Nothing  in  this  act  shall  affect  the  organi- 
zation of  any  mutual  or  other  insurance  company,  or  any 
existing  contract  for  insurance  of  employers'  liability,  nor 
the  right  of  the  employer  to  insure  in  mutual  or  other  com- 
panies, in  whole  or  in  part,  against  such  liability,  or  against 
the  liability  for  the  compensation  provided  for  by  this  act, 
or  to  provide  by  mutual  or  other  insurance,  or  by  arrange- 
ment with  his  employes,  or  otherwise,  for  the  payment  to 
such  employes,  their  families,  dependents,  or  representa- 
tives, of  sick,  accident,  or  death  benefits  in  addition  to  the 
compensation  provided  for  by  this  act.  But  liability  for 
compensation  under  this  act  shall  not  be  reduced  or  affected 
by  any  insurance,  contribution,  or  other  benefit  whatsoever, 
due  to  or  received  by  the  person  entitled  to  such  compensa- 
tion, and  the  person  so  entitled  shall,  irrespective  of  any 
insurance  or  other  contract,  have  the  right  to  recover  the 
same  directly  from  the  enployer;  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name,  in  the  manner  provided 
in  this  act,  the  liability  of  any  insurance  company  which  may, 
in  whole  or  in  part,  have  insured  the  liability  for  such  com- 
pensation; provided,  however,  that  payment  in  whole  or 
in  part  of  such  compensation  by  either  the  employer  or  the 
insurance  company,  shall,  to  the  extent  thereof,  be  a  bar  to 


1110      BRADBtJRY's   WORKMEN'S   COMPENSATION   LAW 

Wisconsin 

recovery  against  the  other  of  the  amount  so  paid,  and  pro- 
vided further,  that  as  between  the  employer  and  the  insurance 
company,  payment  by  either  directly  to  the  employ^,  or 
to  the  person  entitled  to  compensation,  shall  be  subject 
to  the  conditions  of  the  insurance  contract  between 
them. 

Sec.  2394-27.  Every  contract  for  the  insurance  of  the 
compensation  herein  provided  for,  or  against  liability  there- 
for, shall  be  deemed  to  be  made  subject  to  the  provisions 
of  this  act,  and  provisions  thereof  inconsistent  with  this 
act  shall  be  void.  No  company  shall  enter  into  any  such 
contract  of  insurance  unless  such  company  shall  have  been 
approved  by  the  commissioner  of  insurance,  as  provided  by 
law.  For  the  purposes  of  this  act,  each  employ^  shall 
constitute  a  separate  risk  within  the  meaning  of  section 
1898d  of  the  statutes. 

RELEASE  FROM  LIABILITY 

Sec.  2394-28.  Any  employer  against  whom  liability  may 
exist  for  compensation  under  this  act  may,  with  the  approval 
of  the  industrial  accident  board,  be  relieved  therefrom  by: 

1.  Depositing  the  present  value  of  the  total  unpaid  com- 
pensation for  which  such  liability  exists,  assuming  interest 
at  three  per  centum  per  annum,  with  such  trust  company 
of  this  State  as  shall  be  designated  by  the  employe  (or  by 
his  dependents,  in  case  of  his  death,  and  such  liability  exists 
in  their  favor),  or  in  default  of  such  designation  by  him  (or 
them)  after  ten  days'  notice  in  writing  from  the  employer, 
with  such  trust  company  of  this  State  as  shall  be  designated 
by  the  board;  or 

2.  By  the  purchase  of  an  annuity,  within  the  limitations 
provided  by  law,  in  any  insurance  company  granting  annui- 
ties and  licensed  in  this  State,  which  may  be  designated  by 
the  employ^,  or  his' dependents,  or  the  board,  as  provided 
in  subsection  1  of  this  section. 


TEXTS   OF   COMPENSATION   ACTS  1111 

Wisconsin 


POSTING   OF   NOTICES 

Sec.  2394-29.  The  board  shall  cause  to  be  printed  and 
furnished  free  of  charge  to  anj'  employer  or  employes  such 
blank  forms  as  it  shall  deem  requisite  to  facilitate  or  promote 
the  efficient  administration  of  this  act;  it  shall  provide  a 
proper  record  book  in  which  shall  be  entered  and  indexed  the 
name  of  every  employer  who  shall  file  a  statement  of  election 
under  this  act,  and  the  date  of  the  filing  thereof,  and  a  sep- 
arate book  in  which  shall  be  entered  and  indexed  the  name 
of  every  employer  who  shall  file  his  notice  of  withdrawal 
of  such  election,  and  the  date  of  the  filing  thereof;  and  books 
in  which  shall  be  recorded  all  orders  and  awards  made  by 
the  board,  and  such  other  books  or  records  as  it  shall  deem 
required  by  the  proper  and  efficient  administration  of  this 
act;  all  such  records  to  be  kept  in  the  office  of  the  board. 
Upon  the  filing  of  a  statement  of  election  by  an  employer 
to  become  subject  to  the  provisions  of  this  act,  the  board 
shall  forthwith  cause  notice  of  the  fact  to  be  given  to  his 
employes,  by  posting  such  notice  thereof  in  several  con- 
spicuous places  in  the  office,  shop,  or  place  of  business  of  the 
employer,  or  by  publishing,  or  in  such  other  manner  as  the 
board  shall  deem  most  effective;  and  the  board  shall  likewise 
cause  notice  to  be  given  of  the  filing  of  any  withdrawal  of 
such  election;  but  notwithstanding  the  failure  to  give,  or 
the  insufficiency  of,  any  such  notice,  knowledge  of  all  filed 
statements  of  election  and  notices  of  withdrawal  of  election, 
and  of  the  time  of  the  filing  of  the  same,  shall  conclusively 
be  imputed  to  all  employes. 

APPROPRIATION 

Sec.  2394-30.  A  sum  sufficient  to  carry  out  the  provisions 
of  this  act  is  hereby  appropriated  out  of  any  money  in  the 
treasury  not  otherwise  appropriated. 

Sec.  2394-31.  All  acts  or  parts  of  acts  inconsistent  with 


1112    Bradbury's  workmen's  compensation  law 

Wisconsin 

this  act  are  to  be  deemed  replaced  by  this  act,  and  to  that 
end  are  hereby  repealed. 

legislative  intent 

Sec.  2394-32.  The  legislature  intends  the  contingency  in 
subdivision  2  of  section  2394-1  of  this  act  to  be  a  separable 
part  thereof,  and  the  subdivision  likewise  separable  from 
the  rest  of  the  act,  and  that  part  of  said  section  2394-1 
that  follows  subdivision  2,  likewise  separable  from  the  rest 
of  the  act;  so  that  any  part  of  said  subdivision,  or  the  whole, 
or  that  part  which  follows  said  subdivision  2,  may  fail  without 
affecting  any  other  part  of  the  act. 

Sec.  2.  Section  2394-3  to  2394-32,  inclusive,  shall  take 
effect  and  be  in  force  from  and  after  the  passage  and  publica- 
tion of  this  act,  and  the  entire  act  shall  be  in  force  from  and 
after  September  1st,  1911. 


INDEX 

[References  are  to  Pages] 

A 

ABATEMENT  AND  REVIVAL; 

death  of  dependent;  claim  for  compensation  by  personal  rep- 
resentative   212 

dependent;  representative  of  deceased  dependent 322 

ABOLITION  OF  DEFENSES 1 

California 8 

Illinois 10 

Kansas 13,  144 

Massachusetts 17 

Michigan 22 

Nevada 24 

New  Hampshire 26 

New  Jersey 27 

Ohio 30 

Rhode  Island 33 

Washington 34 

Wisconsin 36 

ACCELERATION  OR  AGGRAVATION  OF  PRE-EXISTING 
DISEASE; 

accidental  bodily  injury 64 

ACCIDENTAL  BODILY  INJURY; 

acceleration  or  aggravation  of  pre-existing  disease 64 

acting  on  emergency 98 

acting  on  orders  supposed  to  be  authoritative 98 

anaesthetic  administered  for  purpose  of  operation 67 

anthrax  from  handling  wool 64 

apoplexy '. .  .  .  58 

beat  hand  or  beat  knee 55 

bite  of  animal 67 

bite  of  cat  on  master's  premises  at  mealtime 102 

1113 


1114  INDEX 

[References  are  to  Pages] 

ACCIDENTAL  BODILY  INJURY— Continued 

biood  poisoning 68 

blood  poisoning  caused  by  tight  boots 70 

cardiac  breakdown  due  to  heavy  work 60 

cause  of  injury  not  incidental  to  employment 107 

caustic  soda  causing  injury  to  skin  on  hands 69 

collector  going  from  house  to  house 105 

collector  using  bicycle  in  employment  without  direction  or 

prohibition  of  employer 106 

commercial  travelers 105 

death  from  anaesthetic  administered  for  the  purpose  of  per- 
forming surgical  operation 211 

definition  of 47 

dermatitis  caused  by  using  caustic  soda  without  gloves 69 

dishwasher;  injury  to  hands  by  caustic  soda 69 

disobeying  orders 91 

doing  acts  for  which  workman  was  not  employed 94 

doing  forbidden  acts 91 

drowning  from  tug , 50 

emergency;  acting  on 98 

employment  in  a  refreshment  room  in  a  station  not  employ- 
ment on  railway 107 

engine  driver  hit  by  stone  thrown  by  boy  from  bridge 101 

enteritis  from  inhaling  noxious  gases 66 

erysipelas  from  wound 70 

eyesight  injured  by  piece  of  steel  hitting  eye 52 

falUng  from  wagon 61 

fits  causing  fall 58 

frostbite 54 

gas  poisoning 65 

germ  or  poison  into  system  through  break  in  skin 68 

getting  on  and  off  vessels 82 

glanders  from  handling  hides 64 

going  to  and  from  place  of  employment 72 

going  to  designated  place  to  receive  pay 108 

heart  disease 58 

heart  failure 106 

heat  stroke 52 

hypodermic  needle  causing  blood  poison 69 

inferences  from  unexplained  injuries 103 

inflammation  of  kidneys  from  working  in  water 54 

inhalation  of  poisonous  gases;  acceleration  of  disease  of  long 


INDEX  1115 

[References  are  to  Pages] 

ACCIDENTAL  BODILY  INJURY— Continued 

standing 65 

insanity  indirectly  resulting  from  bodily  injury 64 

"larking,"  joking  or  fooling 51,  100 

lead  poisoning 67 

lightning  striking  workman 49, 102 

lockjaw  resulting  from  nail  in  foot 102 

malicious  injury  by  another  workman 101 

mealtime;  accidents  occurring  during 89,  102 

medical  treatment  which  is  defective 51 

mental  shock  or  fright 62 

murder  committed  by  robber 49 

obeying  orders  which  workman  is  not  bound  to  obey 98 

opening  old  wound  by  strain;  septic  poisoning 68 

overexertion 57 

paralysis 61 

pneumonia  from  inhaling  gases  in  mine  from  explosion 67 

poachers;  attack  by 49 

poison  entering  through  blister  on  finger 69 

reaching  to  recover  pipe  dropped  from  wagon 106 

rebuilding  station  not  employment  on  railway 107 

remaining  on  property  after  suspension  from  work 110 

returning  to  place  of  employment  to  get  tools 109 

rupture 49,  55 

sailor  on  board  ship  in  foreign  port  hit  by  stray  bullet  shot 

by  revolutionist 50 

saving  life  of  another 100 

special  policeman  and  messenger  injured  while  going  to  and 

from  place  of  employment 103 

sprains  and  strains 56 

strikers ;  attack  by 49 

suffocation  in  burning  house 103 

suicide  while  insane  from  loss  of  eyesight 207 

sunstroke 53 

syncope 60 

term  "accident"  used  in  ordinary  or  popular  sense 48 

traumatic  pneumonia 61 

unnecessary  exposure  to  obvious  danger 97 

violation  of  law  by  fellow  workman  causing  injury 101 

what  is;  mixed  question  of  law  and  fact 48 

workman  placed  in  position  of  peculiar  danger 102 

See  Arising  out  of  and  in  the  course  of  the  employment.  . 


1116  INDEX 

[References  are  to  Pages] 

ADMINISTRATOR; 

deceased  employer;  right  of  workman  to  take  out  letters  of 

administration 397 

necessity  of  administering  on  estate  of  deceased  workman ....   324 

ADMISSIONS; 

answer;  admission  that  compensation  has  been  paid  is  ad- 
mission that  claim  has  been  made 407 

AGE  OF  INFANT; 

misrepresentation  as  to;  serious  and  willful  misconduct 128 

AGENCY; 

unauthorized  employment  by  agent  of  employer Ill 

AGRICULTURAL  WORKER; 

who  is 121 

ALIENS; 

dependents 321 

ALTER  EGO; 

principle  of xiii 

ALTERNATIVE  PLAN 493 

California 493 

Illinois 499 

Kansas 499 

Michigan 505 

Nevada 514 

New  Hampshire 514 

New  Jersey 514 

Ohio 514 

Rhode  Island 517 

Wisconsin 530 

See  Insurance  fund;  Insurance  under  state  supervision. 

AMENDMENT  OF  PLEADINGS; 

by  arbitrator 399 

AMPUTATION; 

definition  of;  New  Jersey 340 

AN  ESTHETIC; 

administered  for  purpose  of  operation;  accidental  bodily  injury    67 


INDEX  1117 

[References  are  to  Pages] 

ANCILLARY  WORK  TO  REGULAR  BUSINESS; 

rebuilding  railroad  station;  accident  arising  out  of  and  in  the 
course  of  the  employment 107 

ANIMAL; 

bite  of;  accidental  bodily  injury 67 

bite  of  cat  on  master's  premises  at  mealtime;  accident  arising 
out  of  and  in  the  course  of  the  employment 102 

ANTHRAX;      . 

from  handling  wool;  accidental  bodily  injury 64 

APOPLEXY; 

accidental  bodily  injury 58 

APPEAL; 

award  of  costs  on 454 

California 454 

determining  adequacy  of  lump  sum  paid  under  agreement ....  453 
dismissal  of  action  and  making  decision  in  arbitration  proceed- 
ings   454 

Illinois 456 

Kansas 456 

Massachusetts 456 

Michigan 458 

Nevada 459 

New  Hampshire 459 

New  Jersey 460 

Ohio 460 

order  terminating  weekly  payments  not  appealed  from  is  final  453 

points  raised  below  only  considered  on  appeal 451 

reviewing  awards  by 451 

reviewing  facts 452 

Rhode  Island 461 

Washington 464 

Wisconsin 466 

APPORTIONING  COMPENSATION; 

among  dependents;  procedure 407 

vocational  diseases  contracted  partly  in  employment  of  two 
employers 280 


1118  INDEX 

[References  are  to  Pages] 

ARBITRATION; 

agreement  for  compensation  is  a  bar  to  arbitration  proceedings  399 
agreement  to  pay  compensation  is  not  a  consent  to  submit  to 

arbitration 398 

ARBITRATOR; 

medical  referee's  report  not  conclusive  on 386 

new  trial;  cannot  grant 408 

"ARISING  OUT  OF  AND  IN  THE  COURSE  OF  THE  EM- 
PLOYMENT"   70 

acting  on  orders  supposed  to  be  authoritative 98 

anaesthetic  administered  for  the  purpose  of  performing  surgi- 
cal operation  causing  death 211 

animals;  bite  of  cat  on  master's  premises  at  mealtime 102 

application  of  phrase  to  various  compensation  acts 41 

cause  of  injury  not  incidental  to  employment 107 

collector  going  from  house  to  house 105 

collector  using  bicycle  without  direction  or  prohibition  of  em- 
ployer   106 

commercial  travelers  injured  on  road 105 

disobeying  orders 91 

doing  acts  for  which  workman  not  employed 94 

doing  forbidden  acts 91 

emergency;  acting  on 98 

emergency;   acting  on;  capturing  lions  which  had  escaped 

from  cage 98 

emergency;  acting  on;  driver  of  canal  boat  steering  boat 99 

emergency;  stopping  runaway  horse 99 

employment  in  refreshment  room  at  station  not  employment 

on  railroad 107 

engine  driver  hit  by  stone  thrown  by  boy  from  bridge 101 

fellow  workman  violating  law  at  time  of  injury 101 

getting  on  and  off  vessels 82 

going  to  and  from  place  of  employment 72 

heart  failure 106 

injuries  at  mealtime 89 

"larking"  or  joking 100 

lightning  stroke 102 

lockjaw  resulting  from  nail  in  foot 102 

maid  injured  by  insect  flying  through  window  where  woman 

working 107 

malicious  injury  by  another  workman 101 


INDEX  1119 

[References  are  to  Pages] 

"  ARISING  OUT  OF  AND  IN  THE  COURSE  OF  THE  EM- 
PLOYMENT "—Continued 

mealtime;  injuries  sufifered  during 89 

mealtime;  law  writer  injured  at  lunch  hour 119 

obeying  orders  which  workman  is  not  bound  to  obey 98 

pay  day;  going  to  a  designated  place  to  receive  pay 108 

pay  day;  returning  to  place  of  employment  after  employment 

has  ceased  to  receive  pay 108 

pay  day;  returning  to  place  of  employment  concerning  dispute 

about  wages 109 

peculiar  danger  of  position  of  workman 102 

reaching  for  pipe  dropped  from  wagon 106 

relieving  nature 90 

remaining  on  prof)erty  after  suspension  from  work 110 

returning  to  place  of  employment  to  get  tools 109 

salesman  using  bicycle 106 

saving  life  of  fellow  workman 100 

special  policeman  and  messenger  going  to  and  from  place  of 

employment 103 

suffocation  in  burning  house 103 

unexplained  injuries;  drawing  inferences  therefrom 103 

work  ancillary  merely  to  regular  business  of  employer;  re- 
building railroad  station 107 

ASSAULT; 

malicious  injury  of  one  workman  by  another;  arising  out  of 
and  in  the  course  of  the  employment 101 

ASSIGNMENT  OF  AWARDS 342 

California 342 

Illinois 342 

Kansas 343 

Massachusetts 343 

Michigan 343 

New  Hampshire 343 

New  Jersey 344 

Nevada 343 

Ohio 344 

Rhode  Island 344 

Washington 344 

Wisconsin 345 

See  garnishment  and  assignment  of  awards. 


1120  INDEX 

[References  are  to  Pages] 

ASSOCIATION; 

definition  of;  Massachusetts 338 

ATTORNEY'S  FEES.- 346 

California 346 

Illinois 346 

Kansas 346 

Massachusetts 347 

Michigan 347 

Nevada 347 

New  Hampshire ' 347 

New  Jersey 348 

Ohio 348 

Rhode  Island 348 

Washington 349 

Wisconsin 349 

AVERAGE  WEEKLY  WAGES 242 

actual  earnings  not  usual  wages  paid  in  that  employment.  .  .  250 
basis  of  compensation  when  workman  employed  in  different 

grades 250 

definition  of;  Massachusetts 338 

Kansas 259 

Rhode  Island 267 

See  Wages;  also  names  of  various  States. 

AWARD; 

suspensory 406 

termination  of  at  specified  date  in  future 407 

See  Compensation;  Ba^is  of  award;  Compensation  for  death,  etc. 

B 

BASIS  OF  COMPENSATION; 

ability  to  obtain  same  wages  after  as  before  accident  in  another 

class  of  work 276 

death;  deducting  poor-law  relief  received  by  dependent 210 

death;  estoppel  by  payment  of  compensation  before  death  of 

right  to  deny  liability  therefor  after  death 211 

death;  deducting  wages  paid  to  an  assistant  in  computing  com- 
pensation    210 

dependents  receiving  other  income  because  of  death  of  work- 
man    324 


INDEX  1121 

[References  are  to  Pages] 

BASIS  OF  COMPENSATION— Con^muerf 

pain  and  suffering  not  compensated 275 

partial  dependent ;  amount  due  as  a  question  of  fact 209 

partial  or  temporary  disability;  deducting  hospital  fees  from 

compensation 279 

partial  or  temporary  disability;  disability  by  disease  accelerated 

by  accident 280 

partial  or  temporary  disability;  vocational  diseases;  contracted 
partly  in  employment  of  two  employers;  apportioning  com- 
pensation    280 

partial  or  temporary  disability;  wages  and  compensation  after 

accident  need  not  equal  wages  before  injury 277 

partial  or  temporary  disability;  wages  paid  seaman  under  Ship- 
ping Act  taken  into  account  in  awarding  compensation.  .  .  .   278 
partial  or  temporary  disability;  workman  receiving  the  same 

wages  after  as  before  injury 277 

probable  earnings;  infant. 277 

reduced  earnings  owing  to  general  fall  in  wages 276 

total  dependency  of  mother  on  one  son  when  other  sons  are 

living 209 

wages  and  compensation  in  excess  of  wages  before  accident  . .  277 
See  Death,  compensation  for;  also  names  of  various  States. 

BEAT  HAND; 

accidental  bodily  injury 55 

BEAT  KNEE; 

accidental  bodily  injury 55 

BELGIUM; 

compensation  act xxviii 

BITE  OF  ANIMAL; 

accidental  bodily  injury 67 

attack  by  cat  on  master's  premises  at  mealtime;  accident 
arising  out  of  and  in  the  course  of  the  employment 102 

BLISTER; 

poison  entering  through;  accidental  bodily  injury 69 

BLOOD  POISONING; 

accidental  botiily  injury 68 

caused  by  tight  boots;  accidental  bodily  injury 70 

71 


1122  INDEX 

[References  are  to  Pages] 

BRITISH  COMPENSATION  ACT 852 

history  of xiv 

BUILDING  WORK; 

definition  of;  Kansas 336 

BURDEN  OF  PROOF; 

injury  caused  by  accident;  burden  is  on  workman 399 

modifying  awards;  diminishing  payments 484 

serious  and  willful  misconduct 403 

See  Evidence;  Procedure. 

BURNING  BUILDING; 

suffocation  of  servant;  accident  arising  out  of  and  in  the  course 
of  the  employment 103 

BY  WHOM   LAW  ADMINISTERED  AND  HOW  AWARDS 
DETERMINED; 

forms  of  petitions,  answers  and  awards 396 

'    See  Procedure;  also  the  names  of  the  various  States. 

c 

CALIFORNIA; 

abolition  of  defenses 8 

alternative  plan 493 

appeal 454 

assignment  of  award 342 

attorney's  fees 346 

casual  employe 133 

commutation  of  award 295 

compromising  claims  and  awards 574 

contracts  presumed  to  be  subject  to  act 567 

death;  compensation  for 212 

definitions  not  classified 334 

dependents 324 

domestic  servants 133 

election  of  remedies 9 

election  to  come  under  act;  how  made 134 

exempting  employers  from  operation  of  act 190 

expenses  of  administering  law 579 

fees  and  costs 552 

funeral  expenses 202 


INDEX  1123 

[References  are  to  Pages] 

CALIFORNIA— Co«<mwed 

garnishment  of  award.  .  . .  j 342 

industrial  accident  board 408 

insurance  companies;  enforcement  of  claims  against 561 

limitations 376 

medical  attention 197 

modifying  awards 487 

notice  of  injury 363 

partial  or  temporary  disability;  compensation  for 281 

penalties 531 

permanent  disability ;  definition  of 303 

permanent  partial  disability;  definition  of 309 

physical  examination 386 

preference  of  claims 556 

procedure 408 

repealing  act 584 

reports  of  injuries  and  awards 535 

subcontractor;  liability  of  principal  contractor  for  injuries  to 

workman  of  subcontractor 181 

subrogation 352 

temporary  partial  disability;  definition  of 312 

temporary  total  disability;  definition  of 306 

text  of  Compensation  Act 872 

total  or  permanent  disability,  compensation  for 253 

to  whom  act  applies 132 

wages;  how  computed 254 

when  compensation  begins 193 

when  law  becomes  effective 547 

CARDIAC  BREAKDOWN; 

due  to  heavy  work;  accidental  bodily  injury 60 

CARPENTER; 

employed  to  do  repairs;  when  casual  employe 122 

CASUAL  EMPLOYS, 

bricklayer  employed  to  repair  farm  buildings 122 

California 133 

carpenter  employed  to  do  repairs 122 

domestic  employed  occasionally 122 

Illinois 140,  335 

laborer  employed  to  do  whitewashing 122 


1124  INDEX 

[References  are  to  Pages] 

CASUAL  EMFLOYt— Continued 

Michigan 148 

who  is 121 

who  is;  workman  repairing  private  residence 123 

window  cleaner 121 

Wisconsin 173 

CAUSE  OF  INJURY; 

not  incidental  to  employment;  accident  arising  out  of  and  in 
the  course  of  the  employment 107 

CAUSTIC  SODA; 

injury  to  hands;  accidental  bodily  injury 69 

CHARITABLE  ORGANIZATION; 

employe  of;  when  a  workman 120 

CHEMIST; 

when  not  workman 119 

CHIPPING  STEEL; 

eyesight  injured;  accidental  bodily  injury 62 

CLUMSINESS; 

incapacity  on  the  ground  of  clumsiness  due  to  injury 278 

COLLECTOR  GOING  FROM  HOUSE  TO  HOUSE; 

accident  arising  out  of  and  in  the  course  of  the  employment. .   105 
using  bicycle  without  direction  on  prohibition  of  employer;  ac- 
cident arising  out  of  and  in  the  course  of  the  employment . .   106 

COMMERCIAL  TRAVELERS; 

injured  on  road;  accident  arising  out  of  and  in  the  course  of  the 
employment 105 

COMMUTATION  OF  AWARD 294 

appeal;  determining  adequacy  of  lump  sum  paid  under  agree- 
ment    453 

California 295 

Illinois 295 

Kansas 296 

Massachusetts 298 


index:  1125 

[References  are  to  Pages] 

COMMUTATION  OF  AWARD— Continued 

Michigan 298 

Nevada 298 

New  Hampshire 299 

New  Jersey 299 

Ohio 299 

Rhode  Island 300 

Washington 301 

Wisconsin  . .  , 302 

COMPENSATION; 

basis  of  computation;  death;  compensation  for  previous  injury 
not  included  in  determining  basis  of  compensation  for  sub- 
sequent injury  causing  death 210 

basis  of;  death;  deducting  poor  law  relief  received  by  depend- 
ent    210 

death;  wages  paid  to  an  assistant  in  computing  compensation  210 

partial  dependent;  amount  due  is  a  question  of  fact 209 

See  Death,  compensation  for;  also  names  of  various  States. 

COMPENSATION  ACT; 

Belgium xxviii 

British , 852 

British ;  history  of xiv 

Denmark xxviii 

France xxvii 

four  general  forms  of  such  acts  in  the  United  States xxix 

Germany xviii 

Holland xxix 

Italy xxviii 

liberal  construction  of 334 

Norway xxviii 

Sweden xxviii 

text  of;  California 872 

text  of;  Illinois 895 

text  of;  Kansas 913 

text  of;  Massachusetts 935 

text  of;  Michigan 955 

text  of;  Nevada 989 

text  of;  New  Hampshire 998 

text  of;  New  Jersey 1006 

text  of;  Ohio 1021 


1126  INDEX 

[References  are  to  Pages] 

COMPENSATION  ACT— Continued 

text  of;  Rhode  Island  and  Providence  Plantations 1033 

text  of;  Washington 1058 

text  of;  Wisconsin 1091 

COMPROMISING  CLAIMS  AND  AWARDS 571 

California 574 

effect  of  agreement  to  pay  compensation  during  incapacity  .  .  399 

Illinois 574 

Kansas 575 

Massachusetts 575 

Michigan 575 

Nevada 576 

New  Hampshire 576 

New  Jersey 577 

Ohio 577 

Rhode  Island 577 

Washington 577 

Wisconsin 578 

CONFLICT  OF  LAWS; 

accident  happening  without  the  state  of  the  residence  of  em- 
ployer or  workman;  application  of  compensation  acts 44 

CONSTITUTIONAL  LAW; 

decision  on  compensation  act;  Massachusetts 650 

decision  on  compensation  act;  New  York 592 

decision  on  compensation  act;  Ohio 764 

decision  on  compensation  act;  Washington 703 

decision  on  compensation  act;  Wisconsin 656 

decision  on  employers'  liability  acts,  United  States  Supreme 

Court 785 


CONTRACTS; 

presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 
presumed  to  be  subject  to  act 


California 507 

Illinois 568 

Kansas 568 

Massachusetts 569 

Michigan 569 

Nevada 569 

New  Hampshire 569 

New  Jersey 569 


INDEX  1127 

[References  are  to  Pages] 

CONTRACTS— Con/inj/ed 

presumed  to  be  subject  to  act;  Ohio 569 

presumed  to  be  subject  to  act;  Rhode  Island 570 

presumed  to  be  subject  to  act;  Washington 570 

presumed  to  be  subject  to  act;  Wisconsin 570 

See  Exempting  employers  from  operation  of  act. 

CONTRACTOR; 

independent;  when  not  a  workman 117 

CONVICT; 

not  entitled  to  compensation 275 

COSTS; 

award  of  costs  on  appeal 454 

See  Fees  and  costs. 

D 

DANGER  TO  WORKMAN  PECULIAR  TO  PARTICULAR 
POSITION; 
accident  arising  out  of  and  in  the  course  of  the  employment. .   102 

DEATH; 

compensation  for;  amount  due  partial  dependent  is  a  question 
of  fact 209 

compensation  for;  ansesthetic  administered  for  the  purpose  of 
performing  operation 211 

compensation  for;  California 212 

compensation  for;  claim  for  compensation  by  personal  repre- 
sentatives of  deceased  dependent 212 

compensation  for;  deducting  poor  law  reUef  received  by  de- 
pendent   210 

compensation  for;  deducting  wages  paid  to  assistant  in  com- 
puting compensation 210 

compensation  for;  estoppel  by  payment  of  compensation  before 
death  of  right  to  deny  liabiUty  therefor  after  death 211 


compensation  for 
compensation  for 
compensation  for 
compensation  for 
compensation  for 
compensation  for 


illegitimate  child 208 

Illinois 213 

Kansas 217 

Massachusetts 218 

Michigan 219 

Nevada 220 


1128  INDEX 

[References  are  to  Pages] 

DEATH— Continued 

compensation  for;  New  Hampshire 221 

compensation  for;  New  Jersey 222 

compensation  for;  Ohio 224 

compensation  for;  presumption  of  death  from  absence 208 

compensation  for;  previous  injury;  compensation  for  not  in- 
cluded in  determining  basis  of  compensation  for  subsequent 

injury  causing  death 210 

compensation  for;  Rhode  Island 225 

compensation  for;  suicide  while  insane  from  loss  of  eyesight.  .  207 
compensation  for;  total  dependency  of  mother  on  one  son  when 

other  sons  are  Uving 209 

compensation  for;  Washington 227 

compensation  for;  when  death  not  natural  or  probable  conse- 
quence of  injiu-y 207 

compensation  for;  when  death  occurs  after  compensation  has 

been  paid  for  a  time 208 

compensation  for;  Wisconsin 229 

compensation  to  dependents  for 206 

DEBTOR  AND  CREDITOR; 

seizure  of  awards  for  debt 342 

See  Garnishment;  Assignment. 

DECEASED  EMPLOYER; 

right  of  workman  to  take  out  letters  of  administration  on 
estate 397 

DEFENSES; 

abolition  of 1 

See  Abolition  of  defenses. 

DEFINITIONS; 

not  classified 334 


not  classified 
not  classified 
not  classified 
not  classified 
not  classified 
not  classified 
not  classified 
not  classified 


California 334 

lUinois 334 

Kansas 335 

Massachusetts 337 

Michigan 339 

Nevada 339 

New  Hampshire 339 

New  Jersey 339 


INDEX  1129 

[References  are  to  Pages] 

DEFINITIONS— Conanued 

not  classified;  Ohio 340 

not  classified;  Rhode  Island 340 

not  classified;  Washington 341 

not  classified;  Wisconsin 341 

"DELIBERATE  INTENT"  OF  EMPLOYfi  TO  CAUSE  INJURY; 

Illinois 140 

Kansas 141 

DENMARK; 

compensation  act xxviii 

DEPARTMENTAL  COMMITTEE; 

report  on  right  to  assess  compensation  after  failure  of  action 
for  damages ix 

DEPENDENTS; 

aliens 321 

apportioning  compensation  among;  procedure 407 

California 324 

claim  by  dependents  when  compensation  to  workman  termi- 
nated before  death 323 

death;  compensation  for;  amount  due  partial  dependent  is  a 

question  of  fact 209 

death;  compensation  for;  total  dependency  of  mother  on  one 

son  when  other  sons  are  li\'ing 209 

deceased;  claim  for  compensation  by  personal  representatives.  212 
father  dependent  of  son;  allowance  for  son's  maintenance.  . . .  317 

general  meaning  of  word 315 

illegitimate  children 319 

illegitimate  child;  compensation  for  death 208 

Illinois 325 

inmate  of  workhouse 321 

Kansas 325 

Massachusetts 326,  338 

Michigan , 327 

mother  of  illegitimate  child  as  dependent  of  father  of  child . . .  320 

mother  whose  husband  is  living  as  dependent  of  son 317 

necessity  of  administering  on  estate  of  deceased  workman ....  324 

Nevada 328 

New  Hampshire 328 


1130  INDEX 

[References  are  to  Pages] 

DEPENDENTS— Coniint^ed 

New  Jersey 329 

of  more  than  one  workman 315 

Ohio 329 

parents 316 

parents  of  illegitimate  children 319 

partial  and  total  dependents  of  same  workman 316 

posthumous  child 320 

posthumous  illegitimate  child 320 

pauper 321 

question  of  dependency  is  one  of  fact 324 

receiving  other  income  because  of  death  of  workman 324 

representative  of  deceased  dependent 322 

Rhode  Island 329 

right  of  dependents  independent  of  that  of  deceased 323 

Washington 167,  330 

who  are 314 

widow  and  children  dependents  of  father  when  other  children 

contributed  to  support  of  family 318 

wife  separated  from  husband  before  his  death 318 

Wisconsin 331 

DERMATITIS; 

caused  by  using  caustic  soda  without  gloves;  accidental  bodily 

injury 69 

DISABILITY; 

classification  of 234 

DISEASE; 

acceleration  or  aggravation  of  pre-existing  disease;  accidental 

bodily  injury 64 

inhalation  of  poisonous  gases;  acceleration  of  disease  long 

standing 65 

DISHWASHER; 

injury  to  hands  by  caustic  soda;  accidental  bodily  injury. ...  69 

DISOBEDIENCE  OF  ORDERS  AND  RULES; 

serious  and  willful  misconduct 128 

accident  arising  out  of  and  in  the  course  of  the  employment .  .  91 
acting  on  orders  supposed  to  be  authoritative ;  accident  arising 

out  of  and  in  the  course  of  the  employment 98 


INDEX  1131 

[References  are  to  Pages] 

DISOBEDIENCE  OF  ORDERS  AND  RULES— Continued 

obeying  orders  which  workman  is  not  bound  to  obey;  accident 
arising  out  of  and  in  course  of  employment 98 

DOMESTIC; 

employed  occasionally ;  when  casual  employe 122 

See  to  whom  act  applies;  also  names  of  various  States. 

DOUBLE  COMPENSATION; 

death;  compensation  for  previous  injury  not  included  in  deter- 
mining basis  of  compensation  for  subsequent  injury  causing 
death 210 

DROWNING; 

from  tug;  accidental  bodily  injury ; . .     50 

DRUNKENNESS; 

Kansas 141 

serious  and  willful  misconduct 127 

See  Intoxication. 

E 

EARNINGS; 

actual  not  usual  wages  paid  in  that  employment 250 

how  determined;  Illinois 215 

how  determined;  Kansas 217 

See  Average  weekly  wages;  Wages. 

ELECTION  OF  REMEDIES 1 

assessment  of  compensation  after  failure  of  suit  for  damages; 

report  of  Departmental  Committee ix 

California 9 

Illinois 12 

Kansas 16 

Massachusetts 19 

Michigan 23 

negligence  as  affecting  Kansas 141 

Nevada 25 

New  Hampshire 26 

New  Jersey 29 

Ohio 31 

Washington 35 

Wisconsin 38 


1132  INDEX 

[References  are  to  Pages] 

ELECTION  TO  ACCEPT  COMPENSATION  PRINCIPLE. .  .  39 

as  to  part  of  employes  only 42 

different  methods  of  electing 40 

employer  has  first  election 40 

California 134 

Illinois : 137 

Kansas 143 

Massachusetts 145 

Michigan 147 

New  Hampshire 155 

New  Jersey 157 

Ohio 159 

Rhode  Island 161 

Washington 170 

Wisconsin 172 


ELECTRICAL  WORK; 

definition  of;  Kansas 336 

EMERGENCY; 

acting  on;  accident  arising  out  of  and  in  the  course  of  the 

employment 98 

acting  on;  driver  on  canal  boat  steering  boat;  accident  arising 

out  of  and  in  the  course  of  the  employment 99 

acting  on;  stopping  runaway  horse;  accident  arising  out  of  and 

in  the  course  of  the  employment 99 

capturing  lions  which  escaped  from  cage;  accident  arising  out 

of  and  in  the  course  of  the  employment 98 

saving  life  of  fellow  workman;  accident  arising  out  of  and  in 

the  course  of  the  employment 100 

EMPLOYfi; 

definition;  Illinois 334 

definition  of;  Massachusetts 337 

definition  of;  Rhode  Island 334 

definition  of;  Wisconsin 341 

EMPLOYER; 

definition  of;  Kansas 337 

definition  of;  Rhode  Island 340 

3ee  To  whom  act  applies;  also  the  names  of  the  various  States. 


INDEX  1133 

[References  are  to  Pages] 

EMPLOYERS'  LIABILITY; 

alier  ego  principle xiii 

constitutional  law;  decisions  of  United  States  Supreme  Court 

on  employers'  liability  acts 785 

fellow  servant  doctrine;  origin  of xii 

ENGINEERING  WORK; 

definition  of;  Kansas 336 

ENGINE  DRIVER; 

hit  by  stone  thrown  by  boy  from  bridge;  accident  arising  out 
of  and  in  the  course  of  the  employment 101 

ENTERITIS; 

from  inhaling  noxious  gases;  accidental  bodily  injury 66 

ERYSIPELAS; 

from  wound;  accidental  bodily  injury 70 

ESTOPPEL; 

payment  of  compensation  before  death  as  affecting  right  to 
deny  liability  therefor  after  death 211 

EVIDENCE; 

burden  of  proof;  diminishing  payments;  modifying  awards. . .  484 

burden  of  proof;  failure  to  give  notice;  lack  of  prejudice 360 

burden  of  proof ;  serious  and  willful  misconduct 403 

burden  of  proving  the  injury  was  caused  by  accident  is  on  the 

workman 399 

death;  presumption  of  from  absence 208 

finding  on  question  of  fact  as  to  which  there  is  any  evidence  to 

support 404 

inferences  from  unexplained  injuries 103 

inferences  in  the  absence  of  direct  proof 400 

hearsay;  statement  by  deceased  workman  as  to  cause  of  injurj'  404 
hearsay;  statement  by  employe  in  absence  of  his  employer  as 

to  bodily  or  mental  feelings 403 

EXAGGERATION  OF  INJURY; 

ability  to  do  light  work  after  accident 276 

EXAMINATIONS  BY  PHYSICIANS 383 

See  Physical  examinations. 


1134  INDEX 

[References  are  to  Pages] 

EXECUTION  AGAINST  PERSON; 

enforcing  payment  of  award  by 407 

EXEMPTING  EMPLOYERS  FROM  OPERATION  OF  ACT. .  188 

California 190 

Illinois 190 

Kansas 190 

Massachusetts ' 191 

Michigan 191 

Nevada 191 

New  Hampshire 191 

New  Jersey 191 

Ohio 192 

Rhode  Island 192 

Washington 192 

Wisconsin 192 

EXPENSES  OF  ADMINISTERING  LAW; 

California 579 

Illinois 579 

Kansas 579 

Massachusetts 580 

Michigan 580 

Nevada 581 

New  Hampshire 581 

New  Jersey 581 

Ohio 581 

Rhode  Island 582 

Washington 583 

Wisconsin 583 

EXPLOSION; 

poisoning  from  inhaling  gas  in  mine  producing  pneumonia; 

accidental  bodily  injury 67 


FACTORY; 

definition;  Kansas 335 

FALLING  FROM  WAGON; 

accidental  bodily  injury 61 


INDEX  1135 

[References  are  to  Pages] 

FATHER; 

as  dependent  of  son 316 

FEES  AND  COSTS 551 

California 552 

Illinois 552 

Kansas 552 

Massachusetts 552 

Michigan 553 

Nevada 553 

New  Hampshire 553 

New  Jersey 554 

Ohio 554 

Rhode  Island 554 

Washington 554 

Wisconsin 555 

FELIX)W  SERVANT; 

doctrine  and  origin  of xii 

malicious  injury  of  one  fellow  servant  by  another;  accident 

arising  out  of  and  in  the  course  of  the  employment 101 

violation  of  law  by  causing  injury  to  co-employe;  arising  out 

of  and  in  the  course  of  the  employment 101 

See  Abolition  of  defenses 

FINDING; 

question  of  fact;  effect  of  finding  when  there  is  any  evidence 
to  support  it 404 

FIREMAN; 

policeman  acting  as;  when  not  workman 119 

FITS  CAUSING  FALL; 

accidental  bodily  injury 58 

FOOLING; 

accidental  bodily  injury 61 

FOOTBALL  PLAYER; 

when  a  workman 119 

FORBIDDEN  ACTS; 

injury  arising  out  of  and  in  the  course  of  employment 91 


1136  INDEX 


[References  are  to  Pages] 

FRANCE; 

compensation  act xxvii 

FROSTBITE; 

accidental  bodily  injury 54 

FUNERAL  EXPENSES 202 

California 202 

Illinois 202 

Kansas 202 

Massachusetts 203 

Michigan 203 

Nevada 203 

New  Hampshire 203 

New  Jersey 204 

Ohio 204 

Rhode  Island 204 

Washington 204 

Wisconsin .' . .  205 

G 

GARNISHMENT  OF  AWARDS 342 

California 342 

Illinois 342 

Kansas 343 

Massachusetts j 343 

Michigan 343 

Nevada 343 

New  Hampshire 343 

New  Jersey 344 

Ohio 344 

Rhode  Island 344 

Washington 344 

Wisconsin 345 

GAS  POISONING; 

acceleration  of  disease  of  long  standing;  accidental  bodily  in- 
jury      65 

accidental  bodily  injury 65 

enteritis  from  inhaling  noxious  gases;  accidental  bodily  injury     66 
pneumonia  from  inhaling  gas  from  explosion  in  mine;  acci- 
dental bodily  injury ...,.,,.,..,.,,     67 


INDEX  1137 

[References  are  to  Pages] 

GERM; 

poisoning  through  break  in  skin;  accidental  bodily  injury. ...     68 

GERMANY; 

compensation  act xviii 

GETTING  ON  AND  OFF  VESSELS; 

accidents  arising  out  of  and  in  the  course  of  employment. ...     82 

GLANDERS; 

from  handling  hides;  accidental  bodily  injury 64 

GOING  TO  AND  FROM  PLACE  OF  EMPLOYMENT; 

accident  happening  while  on  the  way 72 

GUARDIAN  AD  LITEM; 

necessity  of  appointment  in  proceeding  vmder  act 397 


H 

HEART  DISEASE; 

accidental  bodily  injury 58 

HEART  FAILURE; 

accident  arising  out  of  and  in  the  course  of  the  employment. .   106 

HEAT  STROKE; 

accidental  bodily  injury 52 

HOLLAND; 

compensation  act xxix 

HOSPITAL  FEES; 

deducting  from  compensation 279 

HYPODERMIC  NEEDLE  CAUSING  BLOOD  POISON; 

accidental  bodily  injury 69 


I 

ILLEGITIMATE  CHILD; 

compensation  for  death 208 


1138  INDEX 

[References  are  to  Pages] 

ILLINOIS; 

abolition  of  defenses 10 

alternative  plan. 499 

appeal 456 

assignment  of  award 342 

attorney's  fees 346 

casual  employe 140,  335 

commutation  of  award 295 

compromising  claims  and  awards 574 

contracts  presumed  to  be>subject  to  act 567 

death;  compensation  for 213 

definitions  not  classified 334 

"deliberate  intention"  to  cause  injury 140 

dependents 325 

earnings;  how  determined 215 

election  of  remedies 12 

election  to  come  under  act;  how  made 137 

employe;  definition 334 

exempting  employers  from  operation  of  act 190 

expenses  of  administering  law 579 

fees  and  costs 552 

funeral  expenses 202 

garnishment  of  award 342 

insurance  companies;  enforcement  of  claims  against 562 

limitations 377 

medical  attention 197 

modifying  awards 487 

notice  of  injury 364 

partial  or  temporary  disability;  compensation  for 281 

penalties 531 

permanent  disability;  definition  of 303 

physical  examination 387 

preferences  of  claims 556 

procedure 411 

repealing  act 584 

reports  of  injuries  and  awards 538 

safety  regulations;  failure  to  obey;  penalty 139 

subcontractor;  liability  of  principal  contractor  for  injuries  to 

workman  of  subcontractor 181 

subrogation 352 

temporary  partial  disability;  definition  of 312 

temporary  total  disability;  definition  of 306 

text  of  Compensation  Act 895 


INDEX  1139 

[References  are  to  Pages] 

ILLINOIS— Con^mwed 

total  or  permanent  disability;  compensation  for 256 

to  whom  act  applies 136 

when  law  becomes  effective 547 

when  compensation  begins 193 

INCAPACITY; 

sufficiency  of  finding  of 404 

INCOMPETENT; 

appointment  of  guardian  ad  litem,  in  proceedings  under  act. . .  397 

INDEMNITY; 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor    176 

INDEPENDENT  CONTRACTOR; 

when  not  a  workman 117 

INFANT; 

misrepresentation  as  to  age;  serious  and  willful  misconduct  . .   128 

INFERENCES; 

absence  of  direct  proof;  what  may  be  inferred 400 

unexplained  injiuies 103 

INFLAMMATION  OF  KIDNEYS; 

from  working  in  water;  accidental  bodily  injury 54 

INHALATION  OF  POISONOUS  GASES; 

accelerating  disease  of  long  standing;  accidental  bodily  injury    65 

INSANITY; 

indirectly  resulting  from  accidental  bodily  injury 64 

INSECT  FLYING  THROUGH  WINDOW; 

injury  to  eye  of  lady's  maid;  accident  arising  out  of  and  in  the 
course  of  the  employment 107 

INSURANCE; 

contracts  presumed  to  be  subject  to  acts 567 

failure  of  workman  to  give  notice  of  injury;  prejudice;  omission 
of  notice  to  insurance  company  by  employer 362 


1140  INDEX 

[References  are  to  Pages] 

INSURANCE  COMPANIES; 

enforcement  of  claims  against 560 


enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 
enforcement  of  claims  against 


California 561 

Illinois 562 

Kansas 562 

Massachusetts 563 

Michigan 563 

Nevada 564 

New  Hampshire 564 

New  Jersey 564 

enforcement  of  claims  against ;  Ohio 564 

enforcement  of  claims  against;  Rhode  Island 565 

enforcement  of  claims  against;  Washington 565 

enforcement  of  claims  against;  Wisconsin 575 

subrogation  by  and  against 350 

INSURANCE  FUND; 

how  created 493 

Massachusetts  Employes'  Insurance  Association;  creation  and 

government  of 500 

Ohio 514 

Washington 518 

INSURANCE  UNDER  STATE  SUPERVISION; 

Michigan 508 

Ohio 514 

Washington 518 

INTERSTATE  COMMERCE; 

application  of  act  to;  Kansas 143 

Michigan 150 

Washington 169 

INTOXICATION; 

Kansas 141 

New  Hampshire 156 

serious  and  willful  misconduct 127 

ITALY; 

compensation  act xxvii 


INDEX  1141 

[References  are  to  Pages] 

J 

JOKING; 

accidental  bodily  injury 51 

accident  arising  out  of  and  in  the  course  of  the  emplojonent . .  100 

JURISDICTION; 

accident  happening  without  the  State  of  the  residence  of  the 

employer  or  the  workman 44 

K 

KANSAS; 

abolition  of  defenses 13,  144 

alternative  plan 499 

appeal 456 

assignment  of  award 343 

attorney's  fees 346 

average  weekly  wages 259 

building  work;  definition  of 336 

commutation  of  award 396 

death;  compensation  for 217 

compromising  claims  and  awards 575 

contracts  presumed  to  be  subject  to  act 568 

definitions  not  classified 335 

deliberate  intention  to  cause  injury 141 

dependents 325 

earnings;  how  determined 217 

election  of  remedies 16 

election  to  come  under  act;  how  exercised 143 

election  to  come  under  act;  minors  and  incompetents 143 

electrical  work;  definition  of 336 

employer;  definition  of 337 

engineering  work ;  definition  of 336 

exempting  employers  from  operation  of  act 190 

expenses  of  administering  law 579 

factory;  definition 335 

fees  and  costs 552 

funeral  expenses 202 

garnishment  of  award 343 

insurance  companies;  enforcement  of  claims  against 562 

interstate  commerce;  application  of  act 143 

intoxication 141 

limitations 377 


1142  INDEX 

[References  are  to  Pages] 

KANSAS— Continued 

medical  attention 198 

mine;  definition 336 

modifying  awards 487 

negligence  as  affecting  election  of  remedies 141 

partial  or  temporary  disability;  compensation  for 281 

notice  of  injury 365 

penalties 532 

permanent  disability;  definition  of 303 

permanent  partial  disability;  definition  of 309 

physical  examination 388 

preferences  of  claims 567 

procedure 412 

quarry;  definition  of 336 

railway;  definition  of 335 

repealing  act 585 

reports  of  injuries  and  awards 539 

safety  guard;  failure  to  use;  effect 141 

subcontractor;  liability  of  principal  contractor  for  injuries  to 

workman  of  subcontractor 182 

subrogation 353 

temporary  partial  disability;  Kansas 312 

temporary  total  disability;  definition  of 306 

text  of  Compensation  Act 913 

total  or  permanent  disability;  compensation  for 259 

to  whom  act  applies 141 

when  compensation  begins 193 

when  law  becomes  effective 547 

workman;  definition  of 337 

L 

"LARKING"; 

accidental  bodily  injury 51 

accident  arising  out  of  and  in  the  course  of  the  employment .  .  100 

LAW  WRITER; 

when  he  is  a  workman 119 

LEAD  POISONING; 

accidental  bodily  injury 67 

LIBERAL  CONSTRUCTION  OF  COMPENSATION  ACT. .  .  334 


INDEX  1143 

[References  are  to  Pages] 

LIGHTNING; 

accidental  bodily  injury  caused  by 49 

struck  by;  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment    102 

LIMITATIONS; 

actions  and  proceedings  under  act 376 

California 376 

Illinois 377 

Kansas 377 

Massachusetts 378 

Michigan 379 

Nevada 379 

New  Hampshire 380 

New  Jersey 380 

Ohio 380 

Rhode  Island 381 

Washington 381 

Wisconsin 382 

LOCKJAW; 

resulting  from  nail  in  foot;  accident  arising  out  of  and  in  the 
course  of  the  employment 102 

LUMP  SUM  PAYMENT.     See  CommiUation. 

M 

MALICIOUS  INJURY  BY  ANOTHER  WORKMAN; 

arising  out  of  and  in  the  course  of  the  emplo3maent 101 

MALINGERING; 

exaggeration  of  injuries;  ability  to  do  light  work  after  accident  276 
modifying  award  when  continued  disabiUty  due  to  idleness 

and  softened  muscles 480 

voluntary  idleness  of  workman  as  tending  to  prolong  disability  279 

MANAGER; 

when  not  workman 119 

MASSACHUSETTS; 

abolition  of  defenses 17 

appeal 456 


1144  INDEX 

[References  are  to  Pages] 

MASSACHUSETTS— Coniinwed 

assignment  of  award 343 

association;  definition  of 338 

attorney's  fees 347 

average  weekly  wages;  definition  of 338 

commutation  of  award 298 

compromising  claims  and  awards 575 

constitutional  law;  decision  on  compensation  act 650 

contracts  presumed  to  be  subject  to  act 569 

death;  compensation  for 218 

definitions  not  otherwise  classified 337 

dependents 326 

dependents;  definition  of 338 

election  of  remedies 19 

election  to  come  under  act 145 

employe;  definition  of 337 

employer;  definition  of 337 

exempting  employers  from  operation  of  act 191 

expenses  of  administering  law 580 

fees  and  costs 552 

funeral  expenses 203 

garnishment  of  award 343 

insurance  companies;  enforcement  of  claims  against 563 

limitations 378 

Massachusetts  Employes'  Insurance  Association;  creation  and 

government  of 500 

medical  attention 198 

modifying  awards 488 

notice  of  injury 366 

partial  or  temporary  disability;  compensation  for 282 

penalties 532 

permanent  disability;  definition  of 303 

permanent  partial  disability ;  definition  of 309 

physical  examination 390 

preferences  of  claims 557 

procedure 416 

repealing  act 585 

reports  of  injuries  and  awards 539 

serious  and  willful  misconduct;  effect  of 146 

subcontractor;  liability  of  principal  contractor  for  injuries  to 

workman  of  subcontractor 183 

subrogation S54 

subscriber;  definition  of 338 


INDEX  1145 

[References  are  to  Pages] 

MASSACHUSETTS— Cowhnjicd 

temporary  partial  disability;  definition  of 312 

temporary  total  disability ;  definition  of 306 

text  of  Compensation  Act 935 

total  or  permanent  disability;  compensation  for 261 

to  whom  act  applies 145 

when  compensation  begins 194 

when  law  becomes  effective 548 

MEALTIME; 

bite  of  cat  on  master's  premises;  accident  arising  out  of  and  in 

the  course  of  the  employment 102 

injuries  suffered  during;  arising  out  of  and  in  the  course  of  em- 
ployment   89 

law  writer  injured  at  lunch  hour 119 

MEDICAL  ATTENTION 197 

California 197 

Illinois 197 

Kansas 198 

Massachusetts 198 

Michigan 199 

Nevada 199 

New  Hampshire 199 

New  Jersey 199 

Ohio 200 

Rhode  Island 200 

Washington 200 

Wisconsin ; 200 

See  Physical  examination. 

MEDICAL  REFEREE; 

cause  of  death  submitted  to 384 

report  not  conclusive  on  arbitrator 386 

MEDICAL  TREATMENT; 

condition  due  to  defective  treatment;  accidental  bodily  injury  51 

MENTAL  FRIGHT; 

disability  caused  by 239 

MENTAL  SHOCK  OR  FRIGHT; 

accidental  bodily  injury 29 


1146  INDEX 

[References  are  to  Pages] 

MESSENGER; 

special  policeman  and  messenger  going  to  and  from  the  place  of 
the  employment;  accident  arising  out  of  and  in  the  course 

of  the  employment 103 

MICHIGAN; 

abolition  of  defenses 22 

alternative  plan 505 

appeal 458 

assignment  of  award 343 

attorney's  fees 347 

casual  employe 148 

commutation  of  award 298 

compromising  claims  and  awards 575 

contracts  presumed  to  be  subject  to  act 569 

death;  compensation  for 219 

definition  not  otherwise  classified 339 

dependents 327 

election  of  remedies 23 

election  to  come  under  act 147 

exempting  employers  from  operation  of  act 191 

expenses  of  administering  law 580 

fees  and  costs 553 

funeral  expenses 203 

garnishment  of  award 343 

insurance  companies;  enforcement  of  claims  against 563 

insurance  under  state  supervision 508 

interstate  commerce 150 

limitations 379 

medical  attention '. 199 

minor;  election  by 149 

modifying  awards 489 

notice  of  injury 368 

partial  or  temporary  disability;  compensation  for 283 

penalties 532 

permanent  disability;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 391 

preferences  of  claims 557 

procedure 416 

repealing  act 586 

reports  of  injuries  and  awards 540 

specific  injuries;  compensation  for 283 


INDEX  1147 

[References  are  to  Pages] 

MICHIGAN— Continued 

subcontractor;  liability  of  principaK contractor  for  injuries  to 

workman  of  subcontractor 184 

subrogation 354 

temporary  partial  disability;  definition  of 312 

temporary  total  disability;  definition  of 307 

text  of  Compensation  Act 955 

total  or  permanent  disability;  compensation  for 262 

to  whom  act  applies 146 

when  compensation  begins 194 

when  law  becomes  effective 548 

willful  misconduct;  effect  of 149 

MINE; 

definition  of;  Kansas 336 

MINORS; 

benefits  under  the  act;  Washington 168 

MISCONDUCT; 

dismissal  of  workman  suffering  from  partial  permanent  dis- 
abiUty 238 

See  Senous  and  willful  misconduct. 

MODIFYING  AWARDS; 

allowance  for  expenses  when  work  furnished  away  from  home . .  484 

application  for  review;  terms  of  binding  on  applicant 471 

apportioning  loss  between  employe  and  employer 484 

California 487 

circumstances  must  have  changed  to  justify  review 469 

diminishing  payments;  burden  of  proof 484 

disability  due  to  brooding  over  injury 481 

disability  from  disease  following  injurj' 479 

eyesight;  rolling-mill  hand  able  to  work  with  glasses  when  vi- 
sion impaired 480 

failure  of  workman  to  get  or  attempt  to  get  light  work 478 

inability  to  get  employment  due  to  slackness  of  work 482 

idleness  'and  softened  muscles  causing  disability 480 

Illinois 487 

inability  to  obtain  light  work 476 

increasing  age  as  affecting  disability 474 

infant  earning  as  much  after  as  he  did  before  accident 482 


1148  INDEX 

[References  are  to  Pages] 

MODIFYING  AWARDS— Continued 

Kansas 487 

keeping  proceeding  alive  by  payment  of  nominal  sum 486 

Massachusetts 488 

Michigan 489 

modification  dating  from  a  period  earlier  than  the  date  of  the 

application 471 

Nevada 489 

New  Hampshire.  .... 489 

New  Jersey 490 

new  medical  evidence  on  review  to  show  changed  circumstances  471 

offering  suitable  employment 477 

Ohio 490 

otherwise  than  by  appeal 468 

probable  earnings  of  infant  in  different  grades •f52 

profits  of  business  enterprise  as  affecting  right  to  reduce  com- 
pensation    483 

question  of  recovery  from  injury  is  one  of  fact 473 

recovering  overpayments  of  compensation 486 

reducing  payments  after  offer  and  refusal  of  light  work 477 

refusal  to  submit  to  surgical  operation 474 

refusing  payments  by  reason  of  ability  to  do  light  work 475 

res  adjudicata;  doctrine  of;  how  applied 469 

Rhode  Island 490 

terminating  compensation  payments 471 

Washington 491 

Wisconsin 492 

workman  permanently  injured  but  suffering  increased  dis- 
ability from  disease 479 

MOTHER; 

as  dependent  of  son 316 

MOTHER  AS  DEPENDENT.    See  Dependents. 

MURDER; 

committed  by  robber;  accidental  bodily  injury 49 

MUTUAL  INSURANCE  COMPANIES; 

Wisconsin 530 

N 

NEGLIGENCE; 

effect  on  election  of  remedies;  Kansas 141 


INDEX  1149 


[References  are  to  Pages] 


NERVOUSNESS; 

disability  caused  by 239 

NEURASTHENIA; 

incapacity  caused  by 239 

NEVADA; 

abolition  of  defenses 24 

alternative  plan 514 

appeal 459 

assignment  of  award 343 

attorney's  fees 347 

commutation  of  award 298 

compromising  claims  and  awards 576 

contracts  presumed  to  be  subject  to  act 569 

death;  comf)ensation  for 220 

definitions  not  otherwise  classified 339 

dependents 328 

election  of  remedies 25 

exempting  employers  from  operation  of  act 191 

expenses  of  administering  law 581 

fees  and  costs 553 

funeral  expenses 203 

garnishment  of  award 343 

insurance  companies;  enforcement  of  workmen's  claim  against  564 

limitations 379 

medical  attention 199 

modifying  awards 489 

notice  of  injury 369 

partial  or  temporary  disability;  compensation  for 287 

penalties 532 

permanent  disability;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 391 

preferences  of  claims 557 

procedure 426 

repealing  act 586 

reports  of  injuries  and  awards 541 

safety  statutes;  \4olation  of 151 

subcontractor;  liability  of  principal  contractor  for  injuries  to 

workman  of  subcontractor 184 

subrogation 355 

temporary  partial  disability;  definition  of 313 


1150  INDEX 


[References  are  to  Pages] 

l>iEY  AD  A— Continued 

temporary  total  disability;  definition  of 307 

text  of  Compensation  Act 989 

total  or  permanent  disability;  compensation  for 263 

to  whom  act  applies 150 

when  compensation  begins 194 

when  law  becomes  effective 549 

NEW  HAMPSHIRE; 

aboUtion  of  defenses 26 

alternative  plan 514 

appeal 459 

assignment  of  award 343 

attorney's  fees 347 

commutation  of  award 299 

compromising  claims  and  awards 576 

contracts  presumed  to  be  subject  to  act 569 

death;  compensation  for 221 

definitions  not  otherwise  classified 339 

dependents 328 

election  of  remedies 26 

election  to  come  under  act 155 

exempting  employers  from  operation  of  act 191 

expenses  of  administering  law 581 

fees  and  costs 553 

funeral  expenses 203 

garnishment  of  award 343 

insurance  companies;  enforcement  of  workmen's  claims  against  564 

intoxication 156 

liability  of  principal  contractor  for  injuries  to  workman  of 

subcontractor 185 

limitations 380 

medical  attention 199 

modifying  awards 489 

notice  of  injury 370 

partial  or  temporary  disability;  compensation 287 

penalties 533 

permanent  disability;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 392 

preferences  of  claims 558 

procedure 427 

repealing  act 586 


INDEX  1151 

[References  are  to  Pages] 

NEW  HAMPSHIRE— Con^intted 

reports  of  injuries  and  awards 541 

safety  statutes;  violation  of 154 

serious  and  willful  misconduct 156 

subrogation 355 

temporary  partial  disability;  definition  of 313 

temporary  total  disability ;  definition  of 307 

text  of  Compensation  Act 998 

total  or  permanent  disability;  compensation  for 264 

to  whom  act  applies 153 

when  compensation  begins 194 

when  law  becomes  effective 549 

NEW  JERSEY; 

abolition  of  defenses 27 

alternative  plan 514 

amputation ;  definition  of 340 

appeal 460 

assignment  of  award 344 

attorney's  fees 348 

commutation  of  award 299 

compromising  claims  and  awards 577 

contracts  presumed  to  be  subject  to  act 569 

death;  compensation  for 222 

definitions  not  otherwise  classified , 339 

dependents 329 

election  of  remedies 29 

election  to  come  under  act 157 

exempting  employers  from  operation  of  act 191 

expenses  of  administering  law 581 

fees  and  costs 554 

funeral  expenses 204 

garnishment  of  award 344 

insurance    companies;    enforcement    of    workmen's    claims 

against 564 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor   185 

limitations 380 

medical  attention 199 

modifying  awards 490 

notice  of  injury 371 

partial  or  temporary  compensation;  compensation  for 288 

penalties 533 


1152  INDEX 

[References  are  to  Pages] 

NEW  JERSEY— Continued 

permanent  disability;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 392 

preferences  of  claims 558 

procedure 428 

repealing  act 686 

reports  of  injuries  and  awards 541 

specific  injuries;  compensation  for 288 

subrogation 356 

synonyms;  under  compensation  act 340 

temporary  partial  disability;  definition  of 313 

temporary  total  disability;  definition  of 307 

text  of  Compensation  Act 1000 

total  or  permanent  disability ;  compensation  for 265 

to  whom  act  applies 156 

when  compensation  begins 195 

when  law  becomes  effective 549 

willful  negligence;  definition  of 339 

NEW  TRIAL; 

arbitrator  cannot  grant 408 

NEW  YORK; 

constitutional  decision 592 

first  compensation  act  passed  in  State  of '.note,    39 

NORWAY; 

compensation  act  of xxviii 

NOTICE  OF  CLAIM; 

admission  in  answer  that  compensation  has  been  paid 407 

disability  not  caused  until  some  time  after  accident 363 

failure  to  give  notice;  lack  of  prejudice  burden  of  proof 360 

ignorance  of  law  not  a  "mistake"  excusing  giving  of  notice  .  .  362 

notice  by  one  dependent  does  not  enure  to  benefit  of  another .  359 
prejudice  by  failure  of  notice;  omission  of  notice  to  insurance 

company  by  employer 362 

sufficiency  of  claim  for  compensation 359 

when  required ;  how  served 358 

NOTICE  OF  INJURY; 

California 363 

Illinois 364 


INDEX  1153 

[References  are  to  Pages] 

NOTICE  OF  INJURY— Continued 

Kansas '. 365 

Massachusetts 366 

Michigan 368 

Nevada 369 

New  Hampshire 370 

New  Jersey 371 

Ohio 372 

Rhode  Island 373 

sufficient  excuse  for  failure  to  give  notice 362 

waiver  of  notice  by  paying  compensation 363 

Washington 374 

Wisconsin 375 

o 

OBVIOUS  DANGERS; 

voluntarily  assuming  position  of;  serious  and  willful  mis- 
conduct   126 

OCCASIONAL  EMPLOYE; 

domestic;  when  casual  employe 122 

OHIO; 

abolition  of  defenses 30 

alternative  plan 514 

appeal 460 

assignment  of  award 344 

attorney's  fees, 348 

commutation  of  award 299 

compromising  claims  and  awards 577 

death;  compensation  for 224 

constitutional  law;  decision  on  compensation  act 764 

contracts  presumed  to  be  subject  to  act 569 

definitions  not  otherwise  classified 340 

dependents 329 

election  of  remedies 31 

election  to  come  under  act 159 

exempting  employers  from  operation  of  act 192 

expenses  of  administering  law 581 

fees  and  costs 554 

funeral  expenses 204 

garnishment  of  award 344 

73 


1154  INDEX 

[References  are  to  Pages] 

OHIO — Continued 

insurance  companies;  enforcement  of  claims  against 564 

insurance  under  state  supervision 514 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor   186 

limitations 380 

medical  attention 200 

modifying  awards 490 

notice  of  injury 372 

partial  or  temporary  disability;  compensation 290 

penalties 533 

permanent  disability;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 393 

preferences  of  claims 558 

procedure 432 

repealing  act 588 

reports  of  injuries  and  awards 542 

subrogation 356 

temporary  partial  disability;  definition  of 313 

temporary  total  disability;  definition  of 307 

text  of  Compensation  Act 1021 

total  or  permanent  disability;  compensation  for 265 

to  whom  act  applies 159 

when  compensation  begins 195 

when  law  becomes  effective 549 

ORDERS; 

disobedience  of;  serious  and  willful  misconduct 128 

OVEREXERTION; 

accidental  bodily  injury 57 

P 

PARALYSIS; 

accidental  bodily  injury ; 61 

PARENTS; 

as  dependents  of  child 316 

as  dependents;  see  Dependents. 

PARTIAL  DEPENDENT; 

amount  due  as  compensation  is  a  question  of  fact 209 


INDEX  1155 

[References  are  to  Pages] 

PARTIAL  OR  TEMPORARY  DISABILITY 274 

compensation  for ;  ability  to  obtain  same  wages  after  as  before 

accident  in  another  class  of  work 276 

compensation  for;  ability  to  do  light  work  after  accident; 

exaggeration  of  injury 276 

compensation  for;  California 281 

compensation  for;  clumsiness  due  to  injury  as  ground  of  in- 
capacity    278 

compensation  for;  convict  not  entitled  to  compensation 275 

compensation  for;  deducting  the  hospital  fees  from  compensa- 
tion    279 

compensation  for;  Illinois 281 

compensation  for;  infant;  probable  earnings 277 

comp)ensation  for;  Kansas 281 

compensation  for;  Massachusetts 282 

compensation  for;  Michigan 283 

compensation  for;  Nevada 287 

compensation  for;  New  Hampshire 287 

compensation  for;  New  Jersey 288 

compensation  for;  Ohio 290 

compensation  for;  pain  and  suffering  not  comp>en8ated 275 

compensation  for;  Rhode  Island 291 

compensation  for;  unsuccessful  efforts  to  obtain  employment.    280 
compensation  for;  vocational  diseases;  contracted  partly  in  the 

employment  of  two  employers  apportioning  compensation  .   280 
compensation  for;  voluntary  idleness  of  workman  as  tending 

to  prolong  disability 279 

compensation  for;  wages  and  compensation  after  accident  need 

not  equal  wages  before  injury 277 

compensation  for;  wages  and  compensation  in  excess  of  wages 

before  accident 277 

compensation  for  wages  paid  seaman  under  Shipping  Act  taken 

into  account  in  awarding  compensation 278 

compensation  for;  Washington 292 

compensation  for;  Wisconsin 292 

compensation  for;  workman  receiving  same  wages  after  as 

before  injury 277 

disability  by  disease  accelerated  by  accident;  basis  of  compen- 
sation   280 


PARTNERS; 

when  are  not  workmen 118 


1156  INDEX 

[References  are  to  Pages] 

PAUPER; 

inmate  of  workhouse  as  dependent 321 

PAY  DAY; 

going  to  a  designated  place  to  receive  pay;  accident  arising 
out  of  and  in  the  course  of  the  employment 108 

returning  to  place  of  employment  after  employment  ceased 
to  receive  pay ;  accident  arising  out  of  and  in  the  course  of  the 
employment 108 

returning  to  place  of  employment  concerning  dispute  as  to 
wages;  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment     108 

PENALTIES; 

California 531 

failure  to  comply  with  the  law 531 

Illinois 531 

Kansas ' 532 

Massachusetts 532 

Michigan 532 

Nevada 532 

New  Hampshire 633 

New  Jersey 533 

Ohio 533 

Rhode  Island 533 

Washington 533 

Wisconsin 534 

PERMANENT  DISABILITY; 

compensation  for 234 


definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 


California 303 

Illinois 303 

Kansas 303 

Massachusetts 303 

Michigan 304 

Nevada 304 

New  Hampshire 304 

New  Jersey 304 

Ohio 304 

Rhode  Island 304 

Washington 305 

Wisconsin 305 


See  Total  or  permanent  disability. 


INDEX  1157 

[References  are  to  Pages] 


PERMANENT  PARTIAL  DISABILITY; 


definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 
definition  of 


California 309 

Illinois 309 

Kansas 309 

Massachusetts 309 

Michigan 310 

Nevada 310 

New  Hampshire 310 

New  Jersey 310 

Ohio 310 

Rhode  Island 310 

Washington 311 

Wisconsin 311 


PHYSICAL  EXAMINATION; 

by  physician 383 

California 386 

cause  of  death  submitted  to  medical  referee 384 

demand   that   workman's   attorney   be   present   at   medical 

examination 383 

Illinois 387 

Kansas 388 

Massachusetts 390 

medical  referee's  report  not  conclusive  on  arbitrator 386 

Michigan 391 

Nevada 391 

New  Hampshire 392 

New  Jersey 392 

Ohio 393 

refusal  of  workman  to  undergo  surgical  operation 385 

Rhode  Island 393 

unreasonable  demand  that  workman's  medical  attendant  be 

present  at  examination 384 

Washington 394 

Wisconsin 395 

PHYSICIANS; 

examination  by 383 

See  Physical  examination. 

PIPE  DROPPED  FROM  WAGON; 

reaching  therefor  when  injury  occurred;  accident  arising  out  of 
and  in  the  course  of  the  employment 106 


1158  INDEX 

[References  are  to  Pages] 

PLEADINGS; 

amending  by  arbitrator 399 

PNEUMONIA; 

inhaling  gas  from  explosion  in  mine;  accidental  bodily  injury . .     67 
traumatic  origin;  accidental  bodily  injury 61 

POACHERS; 

attack  by;  accidental  bodily  injury 49 

POISONING; 

blister   on    finger;   poison  on    entering   through;   accidental 

bodily  injury 69 

blood  poison  caused  by  tight  boots;  accidental  bodily  injury  .     70 

by  gas;  accidental  bodily  injury 64,  65,  67 

enteritis  from  inhaling  noxious  gases;  accidental  bodily  injury     66 
germ  getting  into  system  through  break  in  skin;  accidental 

bodily  injury 68 

hypodermic  needle  causing  blood  poison;  accidental  bodily 

injury 69 

lead  poisoning;  accidental  bodily  injury 67 

POLICEMAN; 

acting  as  fireman;  when  not  workman 119 

special;  going  to  and  from  place  of  employment;  accident 
arising  out  of  and  in  the  course  of  the  employment       103 

POSTHUMOUS  CHILDREN; 

Washington 168 

as  dependent;  see  Dependents. 

PRACTICE; 

how  law  administered 396 

See  Procedure;  Evidence 

PREFERENCES  OF  CLAIMS 556 

California 556 

Illinois 556 

Kansas 557 

Massachusetts 557 

Michigan 557 

Nevada 557 

New  Hampshire 558 


INDEX  1159 

[References  are  to  Pages] 

PREFERENCES  OF  CLAIMS— Cmtinued 

New  Jersey 558 

Ohio 558 

Rhode  Island 558 

Washington 559 

Wisconsin 559 

PRESUMPTIONS; 

inferences  from  unexplained  injuries 103 

PROBABLE  EARNINGS; 

infant;  basis  of  compensation ; 277 

PROCEDURE; 

admission  in  answer  that  compensation  has  been  paid  amounts 

to  admission  of  claim  made 407 

agreement  for  compensation  is  a  bar  to  arbitration  proceedings  399 
agreement  to  pay  compensation  is  not  a  consent  to  arbitration  398 

amendment  of  pleadings 399 

amendment  of  pleadings  by  arbitrator 399 

apportioning  compensation  among  dependents 407 

award  to  terminate  at  specified  date  in  future 407 

burden  of  proof  as  to  serious  and  willful  misconduct 403 

burden  of  proving  the  injury  was  caused  by  accident  is  on  the 

workman 399 

California 408 

effect  of  agreement  to  pay  compensation  during  incapacity  .  .  399 

enforcing  payment  of  award;  body  execution 407 

evidence  generally 403 

finding  on  question  of  fact  as  to  which  there  is  evidence  to 

support 404 

how  law  administered 396 

Illinois 411 

inferences  in  the  absence  of  direct  proof 400 

Kansas 412 

liberal  rules  as  to  procedure 397 

Massachusetts 416 

Michigan 422 

modifying  awards;  keeping  proceeding  alive  by  payment  of 

nominal  sum 486 

necessity  of  appointment  of  guardian  ad  litem  when  interest 

of  incompetent  involved 397 

Nevada 426 


1160  INDEX 

[References  are  to  Pages] 

PROCEDURE— Co7t<i««ed 

New  Hampshire 427 

New  Jersey 428 

new  trial;  arbitrator  cannot  grant 408 

Ohio 432 

Rhode  Island 438 

right  of  workman  to  take  out  letters  of  administration  on  estate 

of  deceased  employer 397 

specifying  amount  when  making  claim  for  compensation 397 

sufficiency  of  finding  of  incapacity 404 

suspensory  award 406 

Washington 442 

Wisconsin 446 

See  Modifying  awards. 

PROFESSIONAL  FOOTBALL  PLAYER; 

when  he  is  a  workman 119 

Q 

QUARRY; 

definition  of;  Kansas 336 

R 

RAILROADS; 

rebuilding  station;  ancillary  work;  accident  arising  out  of  and 
in  the  course  of  the  employment 107 

refreshment  room  at  station;  employment  in  is  not  employ- 
ment on  railroad;  accident  arising  out  of  and  in  the  course 
of  the  employment 107 

RAILWAY; 

definition  of;  Kansas 335 

REFEREE; 

medical;  cause  of  death  submitted  to 384 

medical;  report  not  conclusive  on  arbitrator 386 

See  Pleading;  Procedure 

REGULAR  BUSINESS; 

ancillary  work  to  regular  trade;  rebuilding  railroad  station; 
accident  arising  out  of  and  in  the  course  of  the  employ- 
ment     107 


INDEX  1161 

[References  aie  to  Pages] 

REGULAR  BUSINESS— CorKtnwed 

employment  in  refreshment  room  at  station  not  employment 
on  railroad;  accident  arising  out  of  and  in  the  course  of  the 

employment 107 

RELIEVING  NATURE; 

accident  arising  out  of  and  in  the  course  of  the  employment .  .  90 

REMAINING  ON  PROPERTY  AFTER  SUSPENSION  FROM 
WORK; 

accident  g-rising  out  of  and  in  the  course  of  the  employment. .  110 

REPAIRING; 

carpenter  employed  to  make  repairs;  when  casual  employ^.  .  .  122 

casual  employe;  bricklayer  employed  to  repair  farm  buildings  123 

casual  employe;  workman  repairing  private  residence 123 

REPEALING  ACT; 

California 584 

Illinois 584 

Kansas 585 

Massachusetts 585 

Michigan 586 

Nevada 586 

New  Hampshire 586 

New  Jersey 586 

Ohio 588 

Rhode  Island 589 

Washington 589 

Wisconsin 591 

REPORTS  OF  INJURIES  AND  AWARDS 535 

California 535 

Illinois. 538 

Kansas 539 

Massachusetts 539 

Michigan 540 

Nevada 541 

New  Hampshire 541 

New  Jersey 541 

Ohio 542 

Rhode  Island 545 

Washington 546 

Wisconsin 646 


1162  INDEX 

[References  are  to  Pages] 

RES  ADJUDICATA; 

estoppel  by  payment  of  compensation  before  death  of  right  to 

deny  liability  therefor  after  death 211 

modifying  awards;  how  far  doctrine  applies 4G9 

RETURNING    TO    PLACE    OF    EMPLOYMENT   TO    GET 
TOOLS; 

accident  arising  out  of  and  in  the  course  of  the  employment. .  109 

REVIEW  OF  AWARDS;  see  Modifying  awards. 

REVOLUTIONIST; 

sailor  on  board  ship  in  foreign  port  hit  by  stray  bullet;  acci- 
dental bodily  injury 50 

RHODE  ISLAND; 

abolition  of  defenses 33 

alternative  plan 517 

appeal 461 

assignment  of  award 344 

attorney's  fees 348 

average  weekly  wages 267 

commutation  of  award 300 

compromising  claims  and  awards 577 

contracts  presumed  to  be  subject  to  act 570 

death;  compensation  for 225 

definitions  not  otherwise  classified 340 

dependents 329 

election  to  come  under  act 161 

employe;  definition  of 340 

employer;  definition  of 340 

exempting  employers  from  operation  of  act 192 

expenses  of  administering  law 582 

fees  and  costs 554 

funeral  expenses 204 

garnishment  of  award 344 

insurance  companies;  enforcement  of  claims  against 565 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor   186 

limitations 381 

medical  attention 200 

modifying  awards 490 

notice  of  injury. 373 


INDEX  1163 

[References  are  to  Pages] 

RHODE  ISLAND— Conlintied 

partial  or  temporary  disability;  compensation  for 291 

penalties 533 

permanent  disability ;  definition  of 304 

permanent  partial  disability;  definition  of 310 

physical  examination 393 

preferences  of  claims ^ 558 

procedure 438 

repealing  act 589 

reports  of  injuries  and  awards 545 

specific  injuries;  benefits  for 266 

subrogation 356 

temporary  partial  disability;  definition  of 313 

temporary  total  disability;  definition  of 307 

text  of  Compensation  Act 1033 

total  or  permanent  disability ;  compensation  for 266 

to  whom  act  applies 161 

when  compensation  begins 195 

when  law  becomes  effective 549 

willful  injury;  effect 164 

RULES; 

disobedience  of;  serious  and  willful  misconduct 128 

RUPTURE; 

accidental  bodily  injury 48,  55 

s 

SAFETY  GUARD; 

failure  to  use;  effect;  Kansas 141 

SAFETY  REGULATIONS; 

failure  to  obey;  penalty;  Illinois 139 

SAFETY  STATUTES; 

violation  of;  effect;  Nevada 151 

violation  of;  eflect;  New  Hampshire 154 

SALESMAN; 

using  bicycle;  injured  in  street;  accident  ariBlng  out  of  and  in 
the  course  of  the  employment 106 


1164  INDEX 

[References  are  to  Pages] 

SAVING  LIFE  OF  FELLOW  WORKMAN; 

accident  arising  out  of  and  in  the  course  of  the  employment . .   100 

SEPTIC  POISONING; 

opening  old  wound  by  strain;  accidental  bodily  injury 68 

SERIOUS  AND  WILLFUL  MISCONDUCT 123 

age  of  infant;  misrepresentation  as  to 128 

burden  of  proof 403 

courting  obvious  dangers 126 

"deliberate  intention"  to  cause  injury;  Illinois 140 

determined  from  nature  of  conduct  not  consequences 125 

disobedience  of  orders  and  rules 128 

drunkenness 127 

effect  of;  Massachusetts 146 

New  Hampshire 156 

proof  of  negligence  not  sufficient 126 

question  of  fact,  not  law 126 

right  to  dismiss  as  test  of 126 

See  Willful  injury. 

SETTLEMENT; 

determining  on  appeal  adequacy  of  lump  sum  paid  under 

agreement 453 

See  Compromising  daim»;  Commutation  of  awards. 

SHARE  WORKERS; 

when  entitled  to  compensation 112 

when  entitled  to  compensation;  taxi-cab  drivers 116 

SPECIFIC  INJURIES; 

compensation  for;  Michigan 283 

compensation  for;  New  Jersey 288 

compensation  for;  Rhode  Island 266 

SPRAINS; 

accidental  bodily  injury 56 

STATE  INSURANCE; 

German  plan  is  not xix 

See  Washington;  Ohio;  Massachusetts, 


INDEX  1165 

[References  are  to  Pages] 

STONE  THROWN  FROM  BRIDGE  BY  BOY  HITTING  EN- 
GINE DRIVER; 
accident  arising  out  of  and  in  the  course  of  the  employment. .   101 

STRAIN; 

opening  old  wound;  septic  poisoning;  accidental  bodily  injury     68 
accidental  bodily  injury 56 

STRIKERS; 

attack  by;  accidental  bodily  injury 49 

SUBCONTRACTOR; 

liability  of  principal  contractor  for  injuries  of  subcontractor. .   176 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor    186 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; California 181 

liability  of  principal  contractor  for  injiuies  to  workman  of  sub- 
contractor; Illinois 181 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Kansas 182 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Massachusetts 183 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Michigan 184 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Nevada 184 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; New  Hampshire 185 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; New  Jersey 185 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Ohio 186 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Washington 186 

liability  of  principal  contractor  for  injuries  to  workman  of  sub- 
contractor; Wisconsin 187 

subrogation  by  and  against 350 

SUBROGATION; 

against  subcontractor 350 

by  and  against  employers,  insurance  companies  and  others. .  350 

California 352 


1166  INDEX 

[References  are  to  Pages] 

SUBROGATION— Continued 

Illinois 352 

Kansas 353 

Massachusetts 354 

Michigan 354 

Nevada 355 

New  Hampshire 355 

New  Jersey 356 

Ohio 356 

Rhode  Island 356 

Washington 357 

Wisconsin 357 

SUBSCRIBER; 

definition  of;  Massachusetts 338 

SUFFOCATION  IN  BURNING  HOUSE; 

accident  arising  out  of  and  in  the  course  of  the  employment . .   103 

SUICIDE; 

committed  while  insane  from  loss  of  eyesight 207 

SUNSTROKE; 

accidental  bodily  injury 53 

SURGICAL  OPERATION; 

anaesthetic  administered  for  purpose  of  operation;  accidental 

bodily  injury 67 

modifying  award  when  workman  refused  to  submit  to  surgical 

operation 474 

refusal  of  workman  to  undergo 385 

refusal  to  undergo;  total  or  permanent  disability 238 

SUSPENSION  FROM  WORK; 

remaining  on  the  employer's  prop)erty  thereafter;  accident 
arising  out  of  and  in  the  course  of  the  employment 110 

SUSPENSORY  AWARD 406 

SWEDEN; 

compensation  act. ^ xxviii 


INDEX 


1167 


[References  are  to  Pages] 


SYNCOPE; 

accidental  bodily  injury. 


SYNONYMS  UNDER  COMPENSATION  ACT; 
New  Jersey 


60 


340 


TEMPORARY  DISABILITY 

See  Partial  or  temporary  disability. 


TEMPORARY 

definition  o 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o: 
definition  o: 
definition  o 

TEMPORARY 
definition  o 
definition  o; 
definition  o; 
definition  oi 
definition  oi 
definition  o 
definition  ol 
definition  o 
definition  o 
definition  o 
definition  o 
definition  o; 


PARTIAL  DISABILITY; 

California 

Illinois 

Kansas 

Massachusetts 

Michigan 

Nevada  

New  Hampshire 

New  Jersey 

Ohio 

Rhode  Island i . . 

Washington 

Wisconsin 


TOTAL  DISABILITY; 

California 

Illinois 

Kansas 

Massachusetts 

Michigan 

Nevada  

New  Hampshire , 

New  Jersey 

Ohio 

Rhode  Island 

Washington 

Wisconsin 


274 


312 
312 
312 
312 
312 
313 
313 
313 
313 
313 
313 
313 


306 
306 
306 
306 
307 
307 
307 
307 
307 
307 
308 
308 


TEXTS  OF  COMPENSATION  ACTS 852 

TIME  WITHIN  WHICH  NO  COMPENSATION  IS  ALLOWED 

EXCEPT  MEDICAL  AID 193 

See  When  compensation  beffins. 


1168  INDEX 

[References  are  to  Pages] 

TOOLS; 

returning  to  place  of  employment  to  get ;  accident  arising  out  of 

and  in  course  of  employment  .  .  .  , 109 

TOTAL  OR  PARTIAL  DISABILITY; 

compensation  for;  reduced  earnings  owing  to  general  fall  in 

wages 276 

compensation  for 234 

compensation  for;  California 253 

compensation  for;  Illinois 256 

compensation  for;  Massachusetts 261 

compensation  for;  Michigan 262 

compensation  for;  Nevada 263 

compensation  for;  New  Hampshire  .  . 264 

compensation  for;  New  Jersey 265 

compensation  for;  Ohio 265 

compensation  for;  Rhode  Island 266 

compensation  for;  Washington 269 

compensation  for;  Wisconsin 272 

complete  blindness  caused  to  eye  of  which  sight  had  been  par- 
tially destroyed 237 

dismissal  for  misconduct  of  workman  suffering  from  partial 

permanent  disability 238 

loss  of  eye 236 

nervousness  causing  incapacity  to  work 239 

refusal  of  former  employer  to  supply  work  to  injured  employe  235 

refusal  to  undergo  surgical  operation 238 

removal  of  eye  already  blind 237 

total  incapacity  to  do  regular  work 235 

TO  WHOM  ACT  APPLIES 39 

acceptance  of  compensation  principle  as  to  part  only  of  em- 
ployes   42 

accidental  bodily  injury;  definition  of 47 

accident  occurring  without  the  State  of  the  residence  of  the 
employer  and  employe;  commercial  travelers  injured  on 

road 105 

accidents  happening  without  the  State  of  the  residence  of  the 

employer  or  the  workman 44 

agricultural  worker 121 

California 132 

casual  employes 121 


INDEX  1169 

[References  are  to  Pages] 

TO  WHOM  ACT  APPLIES— Con/tnwed 

casual  employe;  Illinois 140 

Illinois 136 

Kansas 141 

Massachusetts 145 

Michigan 146 

Nevada 150 

New  Hampshire 153 

New  Jersey 156 

Ohio.  . 159 

Rhode  Island 161 

serious  and  willful  misconduct;  workmen  guilty  of 123 

Washington 164 

Wisconsin 170 

workman;  who  is  within  meaning  of  act 110 

See  Accidental  bodily  injury;  workman. 

TRAUMATIC  PNEUMONIA; 

accidental  bodily  injury 61 


UNAUTHORIZED  ACTS; 

doing  acts  for  which  workman  not  employed;  accident  arising 
out  of  and  in  the  course  of  the  employment 94 

UNEXPLAINED  INJURIES; 

drawing  inferences  therefrom 103 


« 


V 


VESSELS; 

getting  on  and  off;  accidents  arising  out  of  and  in  the  course  of 

the  employment 82 

sailor  on  board  ship  in  foreign  port  shot  by  revolutionist; 

accidental  bodily  injury 50 

workmen;  who  are;  share  workers 112 

VIOLATION  OF  LAW  BY  FELLOW  WORKMAN  CAUSING 
INJURY; 
arising  out  of  and  in  course  of  employment ; 101 

74 


1170  INDEX 

[References  are  to  Pages] 

w 

WAGES; 

actual  earnings  not  usual  wages  paid  in  that  employment.  .  .  .  250 

average  weekly 242 

how  computed 254 

See  Average  weekly  wages. 

WAIVER; 

notice  of  injury;  payment  of  compensation  ... 363 

WASHINGTON; 

abolition  of  defenses 34 

appeal 464 

assignment  of  award 344 

attorney's  fees 349 

commutation  of  award 301 

compromising  claims  and  awards 577 

constitutional  law;  decision  on  compensation  act 703 

contracts  presumed  to  be  subject  to  act 570 

death;  compensation  for 227 

definitions  not  otherwise  classified 341 

dependents 330 

dependents;  who  are 167 

election  of  remedies , 35 

election  to  come  under  act 170 

exempting  employers  from  operation  of  act;  Washington  ....  192 

expenses  of  administering  law 583 

fees  and  costs 554 

funeral  expenses ' 204 

garnishment  of  award 344 

insurance  companies;  enforcement  of  claims  "against 565 

insurance  under  state  supervision 518 

intentional  injuries 168 

interstate  commerce 169 

liability  of  principal  contractor  for  injuries  to  workman  of 

subcontractor 186 

limitations 381 

medical  attention 200 

minors;  benefits  under  the  act 168 

modifying  awards 491 

notice  of  injury 374 

partial  or  temporary  disability;  compensation  for , 292 


INDEX  1171 

[References  are  to  Pages] 

WASHINGTON— Continued 

penalties 533 

permanent  disability;  definition  of 305 

permanent  total  disability;  definition  of 311 

physical  examination 394 

preferences  of  claims 559 

procedure 442 

repealing  act 589 

reports  of  injuries  and  awards 546 

subrogation 357 

temporarj'  partial  disability;  definition  of 313 

temporary  total  disability;  definition  of 308 

text  of  compensation  act 1058 

total  or  permanent  disability;  compensation  for 269 

to  whom  act  applies 164 

when  compensation  begins 196 

when  law  becomes  effective 549 

WHEN  ACT  TAKES  EFFECT; 

workman  injured  before  but  dies  after  act  takes  effect Ill 

See  When  law  becomes  effective. 

WHEN  COMPENSATION  BEGINS 193 

California 193 

Illinois 193 

Kansas 193 

Massachusetts 194 

Michigan 194 

Nevada 194 

New  Hampshire 194 

New  Jersey 195 

Ohio 195 

Rhode  Island 195 

Washington  .  » 196 

Wisconsin 196 

WHEN  LAW  BECOMES  EFFECTIVE 547 

California 547 

Illinois 547 

Kansas 547 

Massachusetts 548 

Michigan 548 


1172  INDEX 

[References  are  to  Pages] 

WHEN  LAW  BECOMES  EFFECTIVE— CoTt^inwed 

Nevada 549 

New  Hampshire 549 

New  Jersey 549 

Ohio 549 

Rhode  Island 549 

Washington 549 

Wisconsin 550 

WHITEWASHER; 

when  casual  employe 122 

WHO  ARE  DEPENDENTS 314 

WHO  IS  AGRICULTURAL  WORKER 121 

WHO  IS  CASUAL  EMPLOYfi 121 

bricklayer  employed  to  repair  farm  building 123 

carpenter  employed  to  do  repairs 122 

domestic  employed  occasionally 122 

laborer  employed  to  do  whitewashing 122 

repairing  private  residence 123 

WHO  IS  WORKMAN; 

charitable  organization;  employe  of 120 

chemist 119 

independent  contractor 117 

law  writer 119 

manager 119 

member  of  employer's  family 112 

partners 118 

policeman  acting  as  fireman 119 

professional  football  player 119 

share  workers  on  vessels 112 

taxi-cab  drivers  who  share  in  proceeds 115 

unauthorized  employment  by  agent  of  employer Ill 

within  meaning  of  act 110 

See  Workman. 

WILLFUL  INJURY; 

effect;  Rhode  Island 164 


INDEX  1173 

[References  are  to  Pages] 

WILLFUL  MISCONDUCT; 

burden  of  proof 403 

effect  of;  Michigan 149 

See  Serious  and  willfvl  misconduct;  wiUful  injury;  wiUful  mis- 
conduct. 

WILLFUL  NEGLIGENCE; 

definition  of;  New  Jersey 339 

WINDOW  CLEANER; 

casual  employe 121 

WISCONSIN; 

abolition  of  defenses 36 

alternative  plan 530 

appeal 466 

assignment  of  award 345 

attorney's  fees 349 

casual  employe 173 

commutation  of  award 302 

compromising  claims  and  awards. 578 

constitutional  law;  decision  on  compensation  act 656 

contracts  presumed  to  be  subject  to  act 570 

death;  compensation  for 229 

decision  of  Industrial  Commission  as  to  right  to  accept  com- 
pensation principle  as  to  part  of  employes  only 43 

definitions  not  otherwise  classified 341 

dependents 331 

election  of  remedies 38 

election  to  come  under  act 172 

employe;  definition  of 341 

exempting  employers  from  operation  of  act 192 

expenses  of  administering  law 583 

fees  and  costs 555 

funeral  expenses 205 

garnishment  of  award 345 

insurance  companies;  enforcement  of  claims  against 565 

liability  of  principal  contractor  for  injuries  to  workman  of 

subcontractor 187 

limitations 382 

medical  attention 200 

modifying  awards 492 


1174  INDEX 

[References  are  to  Pages] 

WISCO'NSI'N— Continued 

mutual  insurance  companies 530 

notice  of  injury 375 

partial  or  temporary  disability;  compensation  for 292 

penalties 534 

permanent  disability;  definition  of 305 

permanent  partial  disability;  definition  of 311 

physical  examination 395 

preferences  of  claims 559 

procedure 446 

repealing  act 591 

reports  of  injuries  and  awards 546 

subrogation 357 

temporary  partial  disability;  definition  of 313 

temporary  total  disability;  definition  of 308 

text  of  Compensation  Act 1091 

total  or  permanent  disability;  compensation  for 272 

to  whom  act  applies 172 

when  compensation  begins 196 

when  law  becomes  effective 550 

WORKMAN; 

charitable  organization,  employe  of 120 

definition  of;  Kansas 337 

injured  before  act  takes  effect  but  dies  after  statute  becomes 

effective Ill 


who 
who 
who 
who 
who 
who 
who 
who 
who 
who 
who 
who 
who 


chemist 119 

convict  not  entitled  to  compensation 275 

s;  independent  contractor 117 

s;  law  writer 119 

s;  manager  is  not 119 

s;  member  of  employer's  family 112 

s;  partners 118 

s;  policeman  acting  as  fireman 119 

s;  professional  football  player 119 

s;  share  workers  on  vessels 112 

s;  taxi-cab  drivers  who  share  in  proceeds 115 

s;  unauthorized  employment  by  agent  of  employer Ill 

s;  within  meaning  of  act 110 


See  Who  is  workman. 


^oinUgarlAvenle  ?t.^t  '"'^."'^"Y  'FACILITY 
from  which  it  was  borr«»,oH  "^ 


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UNIVERSITY  OF  CALIFORNIA 
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